our next cases martina's the valet versus office max numbers sixteen dash fifteen fourteen sixteen dash sixteen seventy five and sixteen dash twenty seven fifty one good morning your honour's may peace accord my name is ray lawrence on behalf of the pilots serrano martinez and hearty are you going to research i would like to run a five minutes ok that's granted it also me of course  chapman versus cornwall the vi supreme court has recognized this as a claim and a contract to go course right there is a contract there you're wide contract every employment relationship is contractual you give a service you perform the service and you get paid by the by the employer it is contractual what are the other words of the contract in this besides paying the  recognized in the at will employment relationship this is a claim several courts in this jurisdiction have recognized this as a claim what has become an issue of contention are the elements of this claim and whether or not the seed and fraud were fraud an element of the claim for prita their part coming out of good faith and fair dealing it is and it is an element of the flame of the claim the issue is whether or not the tort o fraud is an element of the claim versus simply proving fraud as defined as a dishonest i dishonest act and this is where the issue has become hotly contested and with industries diction is whether or not you have to in the pen we prove the tort of for a fraud as an additional thing with regard to some rod mean it doesn't mean fraud as a legal thing the thing that we understand never referenced the tort of fraud as an element of that claim because this is where that claim is defined in restatement seven of concept of contracts section two of five they don't refer to the tort of fraud there you for two fraud in the sense of the common term are the honest act and where do you get the idea that when they say this it has to include deceit or fraud that they don't mean what they mean something other than what those terms generally mean when made a part of a legal action you say that that's you you've said it means fraud in the general sense i'm not sure i understand what you mean what's the general sense the word fraud if it's not the the thing where you make a misrepresentation and there's reliance that reliance causes damage you know what does it mean to say that is deceitful and runs in counter to the expectations of the party does it have to be material but it should be material and in this case it is material for does it but does it need to be material it should be material that a jury would determine that this is something that is material does it need to be relied on i do not believe that not that you meant a reliance as defined by the tort of fraud and we gave an example and you have to have any law for this that it's not that it doesn't have to be material that doesn't have to be relied on restatement second of contracts to authorize those things it gives no indication it has to be detrimental reliance the case that was cited to by the defendant stapleton staple versus when vi is where the district court not the supreme court the district court first introduced this idea of detrimental reliance and that you have to in the penalty prove the tort of fraud which begs the question if you have fraud claim you have a fraud claim it would make the breach of good faith and fair dealing claim just redundant does seem odd doesn't it would seem odd and that's why we contend that it could not be that this claim requires you to independently pro on the tour of fraud because you would just have a fraud claim and let's assume for the sake of discussion that we agree with you that it's it's a little weird to say you can't prove a breach of contract without proving  terminated based on office max's contention that he caused an almost fifteen thousand dollar loss at the store with regard to a coupon and we tried to explain in detail we we've read your briefing we understand that  i understand their argument to be in essence and they'll speak for themselves but i understand their argument to be in essence he knew what the no combination policy was that you weren't permitted to combine your employee discount with any other form of this count mr martinez was aware that he was charged and responsible for running the store and seeing that that policy was it here too he admitted that he didn't do that that he took advantage of the employee discount and the intrusion coupon of self that he let other people do it and that it cost the store substantial money and that's why we fired him there was a policy it was explicit he understood  understood it he broke it we're allowed to fire people for that and there's nothing deceitful in that that's their line of argument where's the flaw in that line of argument well that's their line of argument right now where's that and i want you to address it directly where is the flaw if there is one in that line of argument if that was what occurred that i could understand that line of argument that's not what occurred and the players the factual error there in those premises because that the coupon issue you know the no combination policy issue was not the store policy because of the lines and the the conditions that were on the ground at that store at the store the computer are you saying that even though it's explicit in the in the handbook it's also explicit in other documents the names of which are escaping me at the moment the tour not supposed combined discounts as an employee that if things got busy in the store mr martinez was free to say things are really busy forget it go ahead i'm tired mr martinez first of all martin as you did himself he used the intrusion couponing combination with his employee discount he himself that's to page eight of the record right your honor he provided his employee discount card to the cashier and he testified that he did not know she actually did that transaction but because the complete account the computer system is programmed to be able to process these things are magically and because of the nature of the on the ground conditions at the store the lines were kept moving by permitting the computer to do process all transactions not matter but that this explains why it happened it doesn't deny the fact that it happened it does he doesn't deny the fact that it happened he said he did not know that that is what occurred he's claiming honest mistake but he still did it and who was the manager of the store but mr martinez was the manager of the store that's part that he can blame the manager for or paulson your honor it's not as that's not the facts of the case it occurred but he explained that he did not know that one that it occurred and to the store policy was that the computer process carty did not have any issues she was never terminated for any coupon issues they only allege that issue with regard to martinez so because of the conditions on the ground this is why we and the jury would be able to hear this evidence we  tempted to demonstrate the conditions on the ground the conditions that office max allowed to be on the ground by their staffing issues high employee turnover no air conditioning we we i'm sorry my time is up if i just a thought yes because of these conditions the policy was a sound policy to keep the lines moving in the store and to then turn around and fire an employee for those reasons and make up the issue  good morning your honor more morning if i can start where you left off with the palin's counsel on the good faith and fair dealing i believe this court there was a question whether  court might be prepared to say that fraud means something other than the common law understanding with all of fraud the issue in this case obviously is what virgin islands law says and how courts have interpreted this issue and they have and they've adopted the restatement right i'm the supreme court did it in chapman versus cornwall u contract and plaintiffs are now is to not challenge on appeal the finding that there was no contract a number of quills i'm not sure how you can say that there are they've got this theory that there was a contract at the very least there was a unilateral contract then that how could there be a relationship i mean what would the relationship between employer and employee be other than a contractual relationship i agree to pay you money you agree to give me labor isn't that a contract isn't that what we understand a contract to be an exchange for mutual value i mean certainly a lot of courts have sort of said that there is an employment relationship is contractual  yabbies some contractual elements they say it because that's how we commonly think of what a contract is if it's the definition of contract right it's certainly your honor but the courts have been very clear in this territory that standard and and urged courts to have just a reasonable expectation of the parties but as recently as last month the superior court of the virgin islands looking at this claim clearly said that in order to state a claim for breach of a covenant of good faith and fair dealing based on fraud the complainant missed demonstrate a knowing mess misrepresentation intent by the defendant that the plaintiff rely on that false statement actual reliance and she also following virgin islands laws spoke to the requirement of actual reliance on a false representation so says no supreme court authority at this point though right  supreme court has not except in chapman versus cornwall where the court did say that you need the court did say that just a general allegation of pretext is not enough and that there needs to be fraud in order to bring logical he's stick with me logically this is all an attempt in the virgin islands to implement the restatement  his has gotten away from a wholesale adoption of the restatement in and gone to an analysis of a case by case discussion or section by section discussion but in chapman here's the purpose of my question i'm trying to get at the logic of this what is the logic of saying you have you can only have a breach of contract claim for this covenant if you can independently prove  tort i am i think the logic well it's twofold first of all the idea is that you don't have a without some teeth to the claim or you know and some actual element you know just a down and idea that a claim could arise whenever there is some you know reasonable expectation of one party that would be sort of a non  that would arise any time it's you know much time on those who are open would not it wouldn't arise any time because he just said if because the it requires that there be reasonable behavior that the reasonable expectations of the parties not made up not fanciful but what ordinary sensible people would understand is good faith behavior is something that parties have to adhere to and that you don't have to demonstrate fraud to say that behavior frustrated the ordinary expectations of reasonable people that's that's what i understand your opponent's argument to be i might be not be doing her the full credit  don't but that's what i'm trying to get you to grapple with like meet that head on my hearsay her saying it can't mean that and i want you to say why you can't well it can't because that's what virgin islands courts have have consistently said in and  so if this court were writing on a clean slate perhaps you all may come to a different conclusion but i think we have a fairly consistent pattern of virgin islands court both the district court and the superior court requiring an actual showing of a material misrepresentation reliance on by the defendant which is and they say they say there was that they say that the l prevention officer from office max came in i made a promise to mr martinez the promise was come clean and you won't be fired and he came clean and they fired him that's both a breach of a unilateral contract and that's that's a deception and a violation of good faith and fair dealing what meet that head on ok what's your response to several first of all that was not as we pointed out pled in their complaint this was a passing sentence in their summary judgment opposition untethered to any place in the record but beyond that your honor i have this statement that we're talking about is also as  court discussed when it talked about the negligent misrepresentation claim of other plaintiffs he signed a statement which said there was no promise or inducement whatsoever in this case mr martinez presumably made a correct statement on he did not admit to something that never happened so there's no this might be different if mr martinez said i stole ten computers from the store in order to keep his job where that didn't happen know exactly the the improper discount what did the what's the what's the response to the argument that he didn't know this was happened the computer did it he it's true it ended up putting to discuss together but that was embedded in the system and he didn't realize it was happening that's what i'm hearing from the podium now with a sort of well is there an answer who cares or does it matter that he knew or didn't i come and it in our we do not believe that there's any legal authority that would say that that matters for mr martinez who was in manager who did not have a claim under the wrongful discharge act now the district court did seem to think that that matter for the client plaintiffs who had claims under the wrongful discharge but of course mr martinez is a is a super is the manager of the store he is the person responsible for knowing what goes on and we do not think that it's a breach of did that there's any authority for saying that it's a breach of the duty of good faith and for doing to hold a matter to her accountable for following store policy and ensuring that the folks who work with him th violating it is not it his employees about his carty they say you told her to do it the she was told to use this nine nine nine code she did it and then later she gets fired for a to put up job what's what's i mean if we assume as we are required to that her version of the facts is right how can it be appropriate to fire an employee for doing what the employee was told to do again the the arguments they make in their bruce are not supported by the record they pointed to no evidence in the record but missed to support the arguments are now being made on appeal but what misc already testified she was fired for  allowing a is a return to be made where she enters information saying that the person returning a product was somebody other than the individual so ending before her she testified that she knew what she was doing and she knew that that was violating company policy this idea of entering the nine nine nine to keep the lines moving she wasn't fired for keeping lines moving so even if you were set that there was some evidence that she thought she could use ninety nine to keep lines moving that's not what she was fired for she was are for something that she clearly acknowledged in her deposition we pointed to evidence below and there was no disputed fact that she knew and that there was evidence that she understood that entering the name of you know john doe when she knew that jane doe was standing in front of her violated office not max's policies so again we you know labor standards act as we pointed out he offered no evidence or argument as to why he should have been classified as nonexempt if you look at pages thirty fifty forty thirty fifty six of the joint appendix which is  summary judgment opposition you'll see that it's nothing more than a recitation of the law i'm with no reference to the facts so we believe testify you stock shelves he he moved boxes the count of money all kind of clerical type things as the even if this court were to find that they hadn't waive that your honor we believe that as we pointed we pointed out in the bolo his primary duty was management the fact that he performed not exempt passes this court found in early verses family dollar story does not mean that he that doesn't meet the test mr ms carty had the same job in they'd they don't raise that claim with respect to her they ran the store for several months when there was no matter juror you know that he was you know of one of the people he directed their work of two or more employees he certainly met the salary basis test and he had authority to make recommendations as to activities so i'm wondering can can someone who is hired to be a manager but let's just say they're very passive person or they don't do much work and they can they not  test in our case the job description was corroborating evidence but the court didn't stop at the job description the the court the district court did look at the testimony that was presented to it on summary judgment which indicated that mr serrano directed you know more than two employees he met each of the elements of all of that test and you know incidentally mr serrano then cut and paste from his job description on a  a resume for another job so certainly shows not holding himself in i know and if that's all we had i thought you know this might be a different case that's not all we had we did have the testimony of mr ms party who have been saying job and they'd be you know together based on that record the district court properly found that it was undisputed that as a matter of law you know he was not entitle to to over time claims with respect to other parties i mean the district court say and i'm certifying this cost decision under fifty four p at the district court  did not yes certify that but as to the plane as i see appellants on appeal their claims are over and so certainly carty there are no more claims mr serrano there are there are cases were over i mean that that is the sort of percolated up and went back down and then the district court certified it and so that we are here on the it reaches of the appeal i don't but without a fifty four b certification and with a dismissal of the counterclaim w not you're going to press that or not so is it final i our position would be that that dismissal without prejudice of the counter claim does not render the court's decision on  we i think the representation to the court was that the they counterclaim would only potentially be an issue with the entire case for a man dead or were you still got it in your pocket isn't that the point  the finality rule to not let parties take a win and then come back and hit us with a piecemeal appeal but put it put another way maybe what harm is it for us reversal what's the harm in sending back the issue of attorney's fees and costs or just the issue of cost to the district court ott i guess from our perspective i would have a hard time as i stand here articulating a harm i do not know how we could have sat by with this appeal not challenge the district court so that you were going to get your costs and fees because of indigence or hardship or whatever that was a substantive ruling of the trial court heard exactly and we do believe that that  was incorrect as a matter virgie you want to say that was an abuse of discretion under the the local law and if we don't say the thing about that and just send it back then why would we expect the district court to do anything differently on well that that is correct i mean i guess if the district court got his second bite at the apple and did the same thing we could potentially be back here again and you know that i think that's our concern in terms of judicial economy but i we acknowledge this is a complicated does that i'll get around to the get around to the to the attorney's fees is that really the kind of finale that we require i know the court did did paul and then it didn't pan out mean it it punted in the sense of exactly what your honor so jested but then went on to substantively say these cannot be parsed out and seem to then making a substantive determination that about our feet petition and  position on appeal was that that was not grounded in the record and so therefore was an abuse of discretion along with the determination that we were in a prevailing party in the judgment  morning again morning with regard to the jurisdictional issue this court required the pilots to return to the district court and seek rufe fifty four b certification the pallant to did so the paddies did not seek rule fifty four b certification on their particular issues that they are now raising on appeal so it is our contention that this court doesn't have a put it jurisdiction and it was a simple process we were in the rule fifty four b stage of requesting it of the district judge the police could have at that wester thing as you describe it it doesn't get into that at all does right but the answer my question i think is no it doesn't get into that specific point at all and yet this case doesn't get into it so there's not contrary supreme court authority there's no supreme court's authority on this point and it appears that there is a isn't that something this persuasive and should matter to us in making this decision your honor we well there's the period court authority citing two cases that are not supreme court cases and i understand the court may be now concerned as to whether or not this is an actual element there is certification procedures to the u s supreme court so they can give if this court determines that chapman versus cornell is not definitive then a simple certification on this of this issue to the vi supreme court would give the court a definitive answer with regard to whether or not but i don't believe that the supreme court would adopt the view that you have to prove the tort of fraud l and we agree on a price and then you know a month after you and i sign that five year contract i find somebody else who's going to pay me double what you do and then i you know close down my business and change the name of the business and and and don't give you any steel and sell it to the gal who's paying me twice what you are go me you probably sue me for breach of good faith and fair dealing and i have been deceived you were a fraud if you want anyway right correct or are right but then this does seem to be putting a a square peg into a round hole in the employment context though and that's i mean isn't it true that this good faith and fair dealing principle that that's an implied term in contracts goes to the heart of the type of business relationship that i just articulated in my hypothetical and it really doesn't fit in this employment context where the boss can say to the employee oh you lied to me or the employee says the boss you were dishonest with me it just i'm having trouble understanding how it how it fits and i think that's that's always been obvious as attorneys who have you know litigated this issue with its claim it's seems that the courts are more willing to provide businesses with protections with regard to the implied duty of the then breach of you do you have good faith and fair dealing claim that employees who depend on these jobs for a livelihood but do they do it in employer employee cases i mean clearly they do they do provide the protection in terms of business commercial i think for the reasons articulated but you have cases out there that show good faith and fair dealing covenant being  cited as a basis for a cause of action either way in favor of employers who claim that employees are dishonest or with employees claiming that the employer lie we have say the case is out of the washington supreme the washington jurisdiction for the proposition they do recognize a claim and i can't overemphasize enough that the supreme court of the originals that that bridge in ireland also acknowledges the claim with regard to at will employment your knowledge or says claim doesn't mean that say explicitly you have this could apply in the employment context but it's got to be understood as applying and not in the same way it would in other contexts otherwise it would it would swallow the notion of at will car at will employment you can't allow that to happen and so even though will apply it were we're going to be careful not to read it too broadly in the employment cont that how i understood thea is that is that a correct understand if it is a correct understanding why doesn't that answer judge barnes question tell us we got to be careful because it doesn't fit very well in the employment context well the thing and we were al to recognize a valid claim within the the employment context and post chapman versus cornwall the courts have now said ok the v a supreme court has recognized this claim how is it therefore what does it look like is what everybody has struggled with what has what does this claim look like and the end and of a thoughtful judge on the district court has looked at it and said it applies but you've got to kind of read it narrowly there because it doesn't fit very well there because otherwise it's going to swallow up the notion that c of employment that are out will really mean will you got to not read broadly well that that's where we statements to all fight research if you read me statement top five in the commentary to restate me to a fight there are numerous examples of  how the restatement envisioned this concept clean looks like what would be a successful claim versus an unsuccessful claim and with regard to martinez this case we've always believed that his the facts of employment contacts even though this applies it has to be done gingerly you got it you can't treat it like you would in other contexts because you have this tension with at will employment it's got to be read more narrowly in this important context and perhaps you otherwise narrow mean if the claim is what it is is defined by the elements as contained in two or five or the vs supreme court will fashion other definition or is this as we contend an issue for the jury where you say ok here are