poland and cross epically are in financial services seated at counsel table with me is miss abigail schwab from my office who was here on the briefs iran are there really basically two issues in front of the court this is a case first of all involving a remit are given by the district court for a jury verdict and second of all it's a case where the cross appellant i'll just refer to them as christopher right or right alleges that the judge wrongfully denied his motion for judgment as a matter of law based on the fact that there was an issue tried that was not part of the pleadings with regard to the issue of the remitted or it's a standard of abuse of discretion or honors the evidence is to be viewed in the light most favorable to the jury's assessment of damages the law is clear that verdict is supported by the evidence your honor in this case there was direct your honour's in this case there was direct evidence in support of the jury's verdict that evidence was offered as byron financials exhibit x at trial and one that was the only direct evidence for five hundred thousand dollars your honor and he made the statement we really need to we really need to get you know where we've got three and a half to four million of business paid in order to justify paying out five hundred thousand dollars now the evidence was clear that he got more than the four million dollars in business pay that he was looking for and so the jury was free to consider this evidence as evidence that he owed brian france five hundred thousand dollars the jury gets to decide the weight of the  district court not the parties and so in this case like a kind of stronger web though in the context of trial i your honor there was a lot of accounting evidence introduced in this trial and a lot of the accounting evidence was contradictory and so in this case the standard is not did the jury use the evidence that we would get the standard is not did the jury use the evidence the district court that was the best evidence there were a large sixty three minutes right i believe that was correct on and i think that that was correct because frankly i think at because the standard of review is not best evidence i stand and so it's any evidence that is reasonable evidence in this case the jury had reasonable evidence this evidence was introduced without objection why did this record that's it over i believe that the district court substituted its view of the evidence in terms of what was the best evidence for the jury i believe that that is an abuse of discretion because the evidence was admitted into the record without objection the jury was free to consider the course you know  district court i believe looked at the accounting evidence in the case and made its own calculation the district courts calculation was different in the party's calculations during the course of the case there are some risks for some members  numbers and try and figure out if they would make the same decision the jury made that's not the province of the court that's why we have a jury under the seventh amendment and so in this case the jury had evidence supporting the five hundred thousand dollars figure chose to use it this evidence was admitted without a limiting instruction it project the actual statement is we really need to get to you know where we've got three and a half to four million business paid in in order to justify paying out five hundred thousand dollars that's a lot where's the calculation of five party opponent in addition to that counsel had an opportunity to explain this evidence and the actual statements contained in the voicemail there was no explanation offered and in fact when asked if either couts or refer to that in closing argument limits there but no lawyer thought it sufficient significance to refer to the jury and so the district court understandably didn't think that that was a sufficient basis just by itself to the closing arguments trial is a series of decisions involving what the parties believe will be best in this case the decision we made that we believe will be best would be to argue the best case or worst case scenario rather from the plaintiff's spreadsheets our original ask for the closing was going to be four hundred ten thousand dollars counsel objected in the middle of our closing and the judge preclude us from using some of that evidence which is what we do sit in the closing arguments the law is clear that parties are not limited to do the jury is not limited to award the damages asked by the attorneys in closing arguments and so the jury is also of course not but we're talking about we're planning about analysis by the district court whether or not it was justified best evidence or is it throw away evidence or is it an offhand statement it's evidence in this case the evidence exists the evidence also accounting why support a damages of four hundred ten thousand dollars the district court in this case substituted it opinion of what this voicemail testimony meant for the opinion of the jury and in doing so i believe that's an abuse of discretion on the second piece i'm sorry are we going to the second issue in the case is whether or not the insurance cases that work heard after september seventh excuse me september seventeenth of two thousand and thirteen were properly before the jury in this case the parties had there's a bright line on the date of september seventeenth two thousand and thirteen the parties were operating initially under the terms of a written employment agreement that written employment is found in the appendix starting at fourteen zero for your honors this written employment agreement was modified by the parties during their relationship christopher right at mit to one of those modifications an oral modification and the or modification to which he admitted was that the commission payments and that's on page two appendix of fourteen zero five the commission payments themselves were no longer go directly to byron financial he would receive them from the insurance carriers instead that's contrary to the written terms of the agreement christopher right admitted that the parties had made that oral modification the second or modification that the parties made and this evidence came in without objection was that they modified the true period following the cessation of their relationship on appendix at fourteen zero seven your honour's it's clear that even after the employment agreement terminates there are post terminations obligations of the parties in this case the post terminations obligation involves the commission split and it states it shall remain in effect for two years following terminations unemployment so clearly the terms of the agreement contemplated post terminations performance by the parties explicitly says in this case the parties made a second modification to that contract the second modification they made was they extended the true up period so that they included cases not ending on the date of terminations but ending on december thirty first of two thousand and thirteen this issue was tried expressly to the jury it is listed in my closing argument where i said exactly those words are on your runners will find that appendix at twelve eighty nine to twelve ninety in this case mr wright has objected to the issue of modification but he did not object during the trial to any of the evidence of modification this issue was clearly tried by consent of the parties when the issue was raised with the district court post both pre and post trial the district court allowed this evidence in there was no objection to any of it i did prejudice there was no prejudice whatsoever to mr right now i want to be very quick and i'm starting to run of the mire but what about the the the question of what the parameters of the client aim as set forth in the the parameters of the contract pled and the suit was filed over is a contract that ended september seventeenth the contract and september seventeenth but the performance obligations of the contract played in the pleadings your honor continued for years after the terminations that's the section i just read and so even if the contract terminates the parties had written performance obligations and that extended beyond the terminations the contract that's why this evidence was relevant it was also admitted properly and tried by consent of the plaintiff mr right in this case the cases that issued the post september seventeenth cases are explicitly listed in plaintiff's own exhibit fifty six that's an appendix of fourteen eighty eight year honors referring to now for issues tried by consent when an issue not raised by the pleadings is tried by the parties express or implied consent it must be treated in all respects as if it had been raised in the pleadings but it is the last sentence of will fifteen b which is cited in the cases that are in our objecting your honor and also missouri is a fact leading state and not a notice pleading state iran or unless you have specific questions naaman i reserve my last minute and a half or a b may please the court my name is brian mcgovern and i represent the pelly christopher right in this case i'm going to address many of the points raised by counsel because i do very much disagree with the manner in which they've been phrased but i would suggest there are four principle issues before you through these various briefs one does the to the district court area not granting judgment as a matter of law in favor of plaintiff right to the district court error and not granting right a new trial three did this with district court air and granting rights motion for an editor and the fourth to the district court err in the damages awarded under the remit or order i think it's important this court has already noted that there was one contract that was played and there was one contract that was submitted to the jury they are in effect trying to recover different contract they are suggesting the appellant is suggesting that in fact this voicemail somehow constitutes a contract which is binding upon christopher right the appellee despite the fact there is no real offer acceptance or consideration nor is there any amend to include quote america the other thing that they did was to try to amend their answer and that happened during the course of the trial and what counsel attempted to do during the trial was to amend the answer to take the admission that in fact the contract concluded on september seventeenth two thousand and thirteen and changed that to a denial such that they would not be bound to that and i think that's significant because when you look at the case you look through all the briefing there really is no dispute about the accounting council says we use different accounting we didn't the identical accounting which i'll get to in a minute their example tripled the args if they were the exhibits that both parties used to go through and try to determine in fact what if any commissions wrote but i think the significant when you look at the contract and it's the only contract that was before the jury it was the only contract submitted to the jury within the jury instructions is the employment agreement what does that tell us the employment agreement says that it's limited to kish commissions to cases that are pending on the date of terminations it goes on to say specifically if wright's employment is terminated or he terminate his employment for any reason the commission split allocations and paragraph a above which is the fifteen percent commission of all commissions received other than for renewal commissions that described above shall remain in effect for two years following terminations of employment and this is important for cases that are pending on the date of terminations it goes on to say cases that are pending child meaning refer to all cases w company has performed any of the services described on exam there was no dispute as to those cases that predated september seventeenth and those cases that post dated that in fact the appellant kept track of that he had a file which he called c w's new cases submitted since nine seventeen of thirteen there is no ongoing obligation now what the evidence did show through admissions through testimony through documents and judicial notice is that in fact this contract ends admitted but it's within their answer because again they admitted that in fact that was the date in byron's counterclaim which would be the appellant's counter claim he alleges the parties proceeded in accordance with the terms of the employment agreement through september seventeenth two thousand and thirteen at which time they mutually agreed to terminate the employment agreement as of that date the contract ends so then we have to find is there in fact an extension is there a modification is there some amendment to that contract w because the evidence was that those discussions about potentially doing anything with respect to modification don't occur until according to the testimony of mr byron in fact out there is most very well you're relying on the stated in the herd versus honor i would disagree we did not try the case with consent as to the modification or extension of the contract in fact the issue was raised with the court in numerous instances and i would point to the fact that throughout this case  issue it must not be inconsistent with the position taken by the nonmoving party earlier in the present proceedings throughout the trial we continually argued that in fact this contract terminated on september seventeenth two thousand and thirteen as the appe attempted to amend their answer to change the admission to a denial judge hamilton in noting that we had throughout the trial maintained the position that the contract ended and not ever consented to the modification or extension of this contract judge hamilton said i think there's a whole lot of prejudice and what she is responding to is the request to amend the answer they tried this on the basis that you guys byron had said it was terminated but the bottom line is from the get go of the case you said that you admitted that it terminated expensive briefing with respect to the question of the contract terminations the fact there was no modification you are correct your honor that the second will call the second phase of briefing focuses on the accounting you argued it prior to that were  their ruling with rejected the argument without explanation of that is that the landscape i don't recall with in the opinion judge hamilton spending any time discussing the modification of the contract or whether was modified or not i would argue again that in fact during the course of this trial because we maintained the position that the contract had in fact terminated that we never conceded or agreed that in fact a modification was consented to in fact our position was it couldn't have because the contract and september seventeenth and at the very earliest any of the discussions took place relative to a modification or amendment of the contract according to the testimony of talent that doesn't happen until some time on or after september twenty fourth so there is a period of time in which there is no contract and i would like to address if i could form with understand or to oppose termination cases and i don't think it does in this case so your honor because there is no consent there was no agreement of modification there's no course of conduct to look to that would tell us that in fact the parties had any agreement that in fact this contract would go forward you are correct this contract doesn't collude a claim that in fact the contract requires any modification to be in writing and signed by both parties there is such language that did appear and obviously there is no such modification that ever took place i was the contract at issue was the employment agreement there was no dispute as to what contract was pending the instruction as i recall it was this was the typical m a o i that you would expect to find the parties enter into a contract which was the employment agreement  there was no provision contained within that jury instruction that the jury would also have to find that in fact a modification happened there was certainly nothing referenced within that in the question about the voice mail and counsel i think cited it correctly as to what that voice mail said it said nothing more than before we could justify paying out five hundred thousand dollars we would need to get to those figures of three point some million four point eight million dollars counsel didn't mention is at the time of trial that in fact the appellant had already received five hundred thousand dollars what they're suggesting with their argument now is that in fact he should have received over a million dollars in commissions and to come to that conclusion you have to completely change the formula that they were using fire in appellant agreed throughout the trial as to the calculations exhibit fifty six and exhibit triple d were not disputed they were the ones that the parties used and when you do that it is really a simple calculation of taking fifteen percent of commissions received less commissions already received by brian less expenses paid by byron and add to that payments made by right to byron through the process in the closing argument of counsel there is no dispute as to what number should factor into that calculation and what number should factor into the formula in fact when you do that the difference that you'll find is between those cases that pre dates september seventeenth and those cases that post date september seventeen keeping in mind the court did not allow the amendment the pleadings to include any claim for quantum merit there is simply no basis to recover that when you plug those factors into those figures into the formula you come out to forty nine thousand to a six hundred twenty eight dollars and fifty nine cents i think that is the calculation that judge hamilton did within their remit or award the difference was she didn't take into account the forty six thousand dollars payment that had been made by the  getting back to the voice mail there is no in any way to suggest that in fact there is a contract it was not argued to the jury was not presented to the jury the statement does not include any of the material facts of the contract would otherwise have to include there was no evidence whatsoever to support the five hundred thousand dollar award and there is no basis to include that as part of the judgment it is something that is being done after the fact and we think it is being done because the court did not allow appellant to include the claim of quantum merit there is an additional claim for damages counsel didn't identify it specifically but it's referred to as the actual payments in which they have argued in the brief should also be included within the damage award and provides a basis for the five hundred thousand dollars i would ask the court as you note within the briefing act as an insurance company that paid commission two times by mistake it paid it both to the appellee and also to the appellant what they are that some day action may come to request one of them particularly the appellant to have to pay that back it has not been demanded there was no evidence before the jury at the time of the trial as to whether any claim had been made for any of that money and what's incorrect exclude it from any argument and exclude it from any damage calculation in fact she said at this point neither party in this lawsuit is out that hundred fifty two thousand dollars i don't think anybody can say either side can say that one hundred fifty two thousand has damaged them because nobody has paid it so at this stage i don't think anybody can claim that as damages they do within the brief argue that that somehow substantiate some supports the damage claim we would suggest it does not we are asking that the court reverse the remitted or only from the standpoint of the calculation we think the calculation should as you go through the numbers which are not disputed when you look at the closing argument of the appellant he agrees and provides the very same numbers throughout the calculation we argue throughout each one of the elements that the number should actually be forty nine thousand six hundred twenty eight dollars and fifty nine cents we argue that if in fact the court finds that a new trial is not warranted and the other relief is not substantiated honor i think that you will find that on appendix of age twelve forty seven based on the fact that the issue of quantum merit was tried by consent of the parties in this case the jury instruction did not specifically talk about the employment of zero as a number it is with regard to the issue before the jury the jury instruction did not limit the jury to the four corners of the employment agreement instructions in this case were not objected to and the jury instruction read if you are the for damages if you find in favor of defendant byron financial independence byron financial claim for breach of contract you must award in this case it wasn't breach of employment agreement was breach of contract and this jury instruction was consented to by the opposing party in this case the case cited by counsel the american family insurance case were says hollander is illustrative in that case this court held pleaded claim and had the opportunity at trial to cure any surprised by objecting to evidence it did not in this case they consented to the trial of the cases post september cases by ups i'm sorry are you waiting for further developments waiting for further developments or i believe that under the seventh amendment under the law we're clearly entitled to a new trial if we choose not to accept you don't want to i just wondered with you what seems to be the reason why