good morning your honor sir may please the court kevin roar again on behalf of the appellant option energy i've reserved five minutes for you may one being that the district court in correctly interpreted the non compete provision of the of the contract at issue i would like to rely primarily on my briefs for those for  good you have made just put this in context it's the who are the customers i have never been in the natural gas business i don't know how it works i know that is piped in normal you know somebody is the volunteer energy services now what is their role in the distribution of versus option energy and who are the customers that were taken and saw sure i couldn't find anything in the brief that tell me have a business or actually operate sure what what what is going on here is that a volunteer energy is what's known as an alternative energy supplier they provide natural gas to customers that we're talking about here are businesses and individuals owners homeowners consumers yes so what be thousands of customers and potentially it what it is a program in the state of michigan and in many other states where an alternative supplier such as volunteer or hear of a in the pipeline business you know i i will confess your judgment i do not know the exact mechanics i believe that what they do is they essentially purchase some of the volume that the local that the local utility gas company provides anyway and so it's all it's all kind of done on paper they don't actually have a pipeline they're not the big they're not michigan consolidated right they provide an alternative to the local utility such as consumers energy or mischka or michigan consolidated all their know basically sellers of natural gas that's correct that's s what they do and the option energy their sellers of natural gas to option energy is role is to act as a broker on volunteers behalf option energy is essentially the sales agent on the ground in michigan that then goes out and solicits options doesn't own any of this k s no that's that's correct so you're the options the agent volunteer is the  in this particular in this particular case this particular agreement option and he was hired as an agent to work soley in the state of michigan so that would there was a geographic imitation and in that sense but but any but anyone within michigan could buy from any of these sources and no supplier has an exclusive jurisdiction to service that is correct that is correct i guess just to be complete about it the default provider is always the local utility and unless somebody affirmatively chooses to buy their gas from an alternative supplier such as volunteer they will by default get their gas from the local utility what i'd like to focus on with is as i said i'd like to rely on my brief in terms of the interpretation of the of the non solicitation provision we do think that it's clear that the only reasonable interpretation that could have been given to that is that the non solicitation requirement only only became effective upon terminations of the agree on sole place to me that so that's an important question how do you deal say this is not the best contract i've ever seen in fact it's one of the worst but it begins for the term of the agreement and for the longer of a or b you will not solicit existing customers and then it has at the time of the terminations date but this is all in a clause that begins for the term of the agreement that's right how do you say that that's not ambiguous the reason i think that's done in big us is because of what comes in between and there are t solicitation provisions that are that are set forth there is a non solicitation with regard to volunteers employees and there is a non solution the employee clause as we called it there is also a non solicitation clause with regard to volunteers customers and it is only with regard to the customer clause that the language and determination of the agreement appears it also has the sort of strange language they will not solicit existing customers at the time of the terminations date that's exactly how it reads grammatically right which makes some oddity because it's very if the if you rely on the second part it means the first part is meaningless because it terminations but in addition to that they want it to be true during the agreement itself before you ever get to the period they're after so it's very easy to read the two together to make sense out of it and say during the term of the agreement there is a requirement of loyalty and then two for a long it is afterward there's also i think judge where the best we can say is that this is as judge boxes one of the most poorly written contractual provisions that anyone has probably or some pretty bad ones out there and  and therefore i think that ultimately it's perhaps the fact is that it's simply ambiguous and so one has to get past that and rely on the district judge looking at everything i think that this both are included that this and that the the evidence at trial supported the what the intent of the parties actually was what i really like to focus on because even if you get past that i think the very important point that we were raised in our brief and i'd like to discuss is the fact that that volunteer presented virtually no evidence whatsoever to support the damage award of over half a million dollars the only evidence that was presented at trial came from their sales manager who stood on the stand and without presenting but i'm putting any facts into evidence regarding sales regarding costs of production regarding anything simply conclusion really announced that the profit margin that volunteer has per customer per thousand feet of gas that it sells is a dollar and twenty cents and you have to put an evidentiary pleat a piece of evidence a document do you have anything that would not allow it to be testimonial as long as there was a basis for the testimony it absolutely the ohio law is or is replete with those cases we've cited them i think most of if not all of them in our the damage is being shown by documentary evidence as opposed to testimonial evidence what the what the case i would point to that i think addresses your question judge trent is the roads brief in the rhodes case the ohio court rejected exactly what happened in this case is insufficient proof of damage which is somebodies summary conclusory statement of what profit margin is and in the roads case the court said you have to have some evidence to substantiate what the profit margin that you're testifying to was it asked if i'm sorry and you're offering evidence that responses to that to that issue and ask him where he got the number he testified out what his formula was or what his methodology would be to get to that number but there was no underlying evidence to support the not the the actual number that he testified is the right kind of guy right this is not just some lawyer off the street who's testifying to it he's the vice president well he wasn't the most for the he's the sales manager for the michigan territory i mean when the proper thing to be cross examined you say well where did you get a where did you get b where did you get c and you seem to say he did do some of that and then you would say well where is your support for a b and c well he simply basically said this is how you calculate profit margin you take you take sales you subtract the cost of production and what's left over is your profit margin was that that's hard to make if you were to contest that you would have put on some proof that said that that's all wrong well but there was no proof to contest and that's that's exactly the point he was just mystified that that i've been in this business a long time and here is the situation he may be wrong or maybe he's lying i don't know but in order to combat that in an adversary system normally you have to put on something or but examining but but the law of ohio says that it's not if the evidence if there's no evidence that's put on to support a damage award that the connect coke ace in the lawn ohio says it is not fall on the burden of the defendant was cross examined to disprove damages different case because it was based on not historical fact this gentleman in arc in this case in your case testified here is the historical usage of the individuals involved so it was a  basis that we used as our kathy a kinetic said well we have projected sales quotas and we're going to assume that you successfully fulfill the sales quotas and that's how we'll calculate damage if that very distinct from relying on historical data that only historical data they say they volunteer presented west had to do with usage of the customers in dispute but they didn't present any nov the issue is they didn't present any evidence to substantiate the gross profit margin that there that their witness simply testified to without any without any proof or without any substantiation without anything from which the good morning your honor excuse me my name is matt brown it's a pleasure to represent volunteer energy in this case i'd like to request of the corp of four begin may i reserve three minutes for a bottle testimony as you may but it would only be with respect to your own your own far there's two issues that we can address as it relates to option energies assignments of error that have been brought before the court will begin with the breach of contract the ambiguity argument that has been espoused by option energy in this case and i believe judge merritt you were exactly correct when you determined or opined that the language of the contract though well in artfully drafted as the district court was eloquently enough to  state the way that the country was drafted allows for a reasonable interpretation for both provisions to be a political and particular for the term of the agreement and for one year after terminations of the agreement option energy is prohibited from soliciting customers of volunteer energy there's this clause under that section also that refers to at the time of the terminations of the agreement that simply allows for the possibility that a customer made during the term of the agreement because we are dealing with customers on the open market they could leave volunteer energy and if it was once they're gone obviously at that point is long as it was through no fault or through a note transfer by a testimony at trial of approximately twelve hundred accounts that had been brought to volunteer energy by option energy in the state of michigan shawn hall testified that there were approximately sixty thousand accounts that voluntary energy has so that gives you an idea of the total customers that we're dealing with in this particular how many did they steal when the sense that you got your five hundred nine thousand based on almost all of the customers at this point are gone but up until the time that we were talking about this twelve month window during the term of the contract and for twelve months thereafter we're dealing with just simply the customers that were transferred to integris by option energy and roughly how many about four hundred of your own or four hundred to four hundred fifty i want to say some of that would be some of those would have been out of the twelve hundred and some would have been out of the ones you had otherwise no all of those were out of the twelve hundred your honor ok thank you all of this damage certainly do so and i'll do so now the issue before the district court was the exemplary damages the treble damages that were awarded under ohio statute the concern with regard to the sales commission act under the house there shoot what the district court did was it because there was no case in ohio that addresses this issue so what the district where did was it look to the michigan statute and what was happening in michigan with regards to the similar but not the same statute in michigan the statute provides that if the commissions are not paid within  time then treble damages can be awarded or will be awarded to the party whose entitle to those commissions ohio has a very distinct and separate provision in its in its statute although there's a defined time  to when those sales commissions are to be paid there's a cabbie outs of that with regard to exemplary damages and that is the willfulness there's a mens rea element to the ohio state shoot that is absent from the michigan statute so when the legislature  sales commissions where the court allowed the set off here in ohio it's a common law right it exists in ohio when there is a breach of a contract you can set off damages caused by that contract obviously from what you might otherwise oh when the deduced records say about you or you move out of the district or determine that michigan did not permit set off and ohio would likely interpret it the same way the court didn't really determine it just simply said we weren't permitted to there was no analysis behind it other than citing michigan's comparable statute is there a michigan case on the question of this there is your honor so that in michigan you're not permitted to sign off on the under the commission's statute or your  has to rely on the fact that there are these words like willful in the ohio statute and that that should mean something quite different and my question  and help me on this to the extent i've had experience with these commissions statutes is you have them because you think agents are in a vulnerable position and the people who ought to pay commissions ought to pay the commissions and so you're trying to say that well we had this in coate right to set off we didn't have a judgment we didn't have a you know something where you know we had loaned him money we think we would win a suit and therefore it wasn't willful to pull the string on him and the judge seemed to think to the contrary so the question is why isn't it willful when you over commissions to say we think we're going to win a lawsuit based on testimony that could be there was there was refused to pay commissions i mean in a sense you're getting a set off in court right you've got a five hundred nine thousand pot out of which eventually you'll come out you know balance but the question is at the point that you said we're not going to pay you what we owe you because you owe us something you've asked several questions your honor and i'll be happy to answer each and every one of them if i missed one just for i mean with regard to the time the first time  that volunteer energy set forth its claims of sun off was right at the time of the breach at the time of the terminations and what you have a debt point you do not know that there's five hundred one thousand dollars of damages it's calculation of course it's done later in preparation for the trial however what you do know what volunteer energy did know at the time was its damages were going to far exceed that because keep in mind volunteer energy's profit margin on this after paying commissions to auction energy is a dollar five per m c f whereas the commissions the fifty three thousand dollars that are owed are based on fifteen cents per m c f commissions so you know that there's going to be a significant difference here maybe i'm wrong about this but help me here i think the commissions that you were paying were commissions on everybody not just the ones they stole that's correct ok that's correct now with regard to what the district court did  when it came to see if i can recall the the question with regard to the willfulness question the air with the district or was it simply did not provide any assessment or opinion on years ago by the ohio supreme court the andersen decision specifically notes that the violation of the statute is not willfulness per se you still need to establish under ohio law an intent to do a wrongful act with the purpose of causing harm to another party to the adverse party so in this situation under ohio law it would have the option energy would have to prove that not only was it wrongful for voluntary energy to withhold the commissions but it was done so with an intent to harm option energy but that's not what not paying somebody not intend to cause them are going to might have been not not done out of some overarching hatred of them but you know if your client is you a hundred thousand dollars and doesn't pay how can that not intend to cause you harm saying he knows the harm but he didn't intend the attempt under the statute i think is more directed towards the hatred inderal heil law you do need to have some level it was the usual it's a different different basis but in people in tim the natural  consequences of their action certainly they do but in this case the intent wasn't to cause the harm it was to the intent was to mitigate the damages even if they were wrong and me and killed it was a real something they thought they were entitled to version is trying to harm the other guy that's correct and i will point out that they were right what you're saying is that's a difference in motivation that i agree or it is a different level of intent what they're intending to do is protect themselves from the harm that is going to be caused to them from i guess i'm i'm struggling with the conceptual basis of this because what what the judge said was this right of set off is not consistent with the statutory requirement that the principle pay all commissions to do and what your argument sounds to me is if you would say well anytime i can think of a reason why i should not pay a departing employee or someone who's represented in broad customers to me and then it's not willful i'm not doing any harm i just say well i think i have a set off or i think the la going to protect me in this and bad the mirror presumption that you might have a legal right not to pay you don't get it seems that what this judge was saying was that just that that is willful stench was drafted in ohio it intice a pace there are legitimate circumstances which may occur between parties that would in time that would result in nonpayment occurring for a period of time that's why there's the level what would fall that is absolutely correct your honor the judgment for option energy in the amount of fifty three thousand dollars which we still believe should be offset from the judgment to to volunteer energy wo thank you you'll have your time for rebuttal soley on your own appeal you have five minutes for rebuttal i do your owners and with regard to the treble damages issue i think that the the panel has articulated the rebuttal that i would make probably far better than i could articulate it myself and i won't try to improve on on on that suffice it to say the i would gather clear i think you had been the is not the same that's not willful our well it is willful i think first of all the statute itself the still ovation there is they owe me this and i've got a theory a reason why they owe it to me and that is that motivation is not the same as trying to harm someone just for the sake of what they were being made well but then what leads to i think is exactly what judge stretch pointed out which is that any time that someone is owed commissions and you don't feel like paying them all you have to do then to escape the penalty of travel damages is come up with some theory oh  i have an office agree that i could travel that but you would have to have the judge agreeing taking a position about whether that theory as a got reason behind it and is a regular normal human motivation that people have other than a motivation to harm them well in this case this but in this case i don't think the statutory language support would support that interpretation the ohio sales commission act doesn't it  says it creates an absolute duty to pay commissions when they are do it uses the word shall and it says that the principal shall pay the agent commission when those commissions are not vomit all right upset all much deeper goes way back longer than that and that's why we have a set of doctrine that has been with us of the common law for several hundred years but the granted but the ohio legislature when it adopted this statute did not choose to didn't say in there that the the idea of a set off is is we're not that's improper they didn't say it's him they didn't say it's improper but i don't know they just said harm or the what they did say is that  you you claimed under the michigan statute but then i guess what everybody decided that ohio would control even though you were suing under a statute and not under a contract or is there a reason that you're not pressing the michigan statute the district court at the summary judgment phase determined that the ohio statute and not the michigan statute would control over this claim you have an of you have an appeal the agent agreement between these parties specifically says that ohio law should apply i mean that's the reason he did i think that is exactly the ruling under a statute that is the reason that you the reason that you fought it up to that point was that you said right we're claiming under under yes our initial theory was that we were claiming under a statute not underbody that he meant every but we're located in michigan so you have to comply with michigan law the district court saw that differently we we were  pleased to proceed under the ohio statute and that's what we did and we have an appeal that that's correct i did that i wanted to address that unless the panel has any further question is ok thank you thank you three minutes for rebuttal on your appeal the rule fifty nine emotion amended the judgment to allow the commissions to be paid for any of the remaining agent customers for forty eight months rather than twelve months this was an issue that had not been litigated up until it was referenced a clue arguments and then brought up in the rule fifty nine emotion what i'd like to address just very very briefly with the court is the background behind the terminations and whether or not there is the provision would apply  in particular what we have is a contract that provides for commissions for twelve months if the contract is terminated by voluntary energy because of a breach of the agent agreement we know that there was a breach of the agent agreement that that is certainly been established at the district court level the question then becomes was was it did volunteer terminate the agent agreement following the breach what we know is a volunteer energy provided the adequate notice under the contract of a breach that happened in the fall of two thousand and two thousand and ten they provided an energy an opportunity to cure the breach it was not cured thereafter once the when the breach was not cured voluntary energy followed a lawsuit for breach of contract only thereafter did auction energy send a letter to volunteer energy saying well we're terminating the contract because of your breach of the contract and in response to that voluntarily as counsel responded in this was trial exhibit twenty responded by noticing the counsel saying no the contract has been terminated because of the breach we followed a lawsuit as the client is aware i think what that  laws not know how your honor not in ohio but not anywhere i think you well well your honor there was a says there was a case in michigan the dealt with that issue michigan laws against you you've got to damages are going to novo review on the ok the complete and and then you go you're not challenging the court's factual finding by the court regarding the credibility of klein she said just take it up