telephone call between the parties regarding the careys claim to a commission while the question of when a dispute arises under the rule is a matter of st impression in this circuit there is ample persuasive president from other circuits and we believe this court should dispute or difference of opinion from the circumstances the alternative would be some sort of a brake line test requiring a dispute to be memorialized to a formal ritualistic notice the trend in the modern trend is may now crystallize to the point of threat of litigation that approach from the th circuit which strongly implies at least a formal notice requirement has not been followed by any other circuit and has been criticised by courts and commentators i like including right miller for being overly ritualistic and constant thus contrary to the policy objectives of the rule there is policy objectives are set forth in the nine hundred and seventy two advisory committee notes st the compromise statements are the relevant because they're motivated by a desire for peace but more importantly as recognized by this court with fiberglass rule for a promotes the public policy favoring out of court settlement of disputes by incentivizing the parties to speak candidly and frankly about their positions thus the actual court parents standard from the th circuit and other circuits better supports the objectives of the rule by protecting negotiations between lay persons who may not have the education necessary to carefully craft their makes sherri had not received any prior communication from defendants as to his request for a commission at the time in the fall and that's from doing appendix for nineteen and a quarter of us to standard a nov we believe that standard is much like evidence clearly demonstrating the existence of a dispute and i'd like to just briefly haile the key facts from the timeline for the court starting approximately a week prior to the sale which occurred on september  commissioned by not paying him at closing and instead terminating them even as they paid five hundred and fifty thousand dollars commission to cast eternally the listing broker the foregoing facts make this case much like  circuit easily infer the existence of a dispute based primarily on the fact that the employee had asserted her claims that her employer and the employer had responded by terminating and offering a separation agreement shortly thereafter so when cherie and roberts get on the phone a week after closing in that share is germination that call can serve no other purpose other than for these two men to attempt to resolve their differences of opinion over that on the commission and avoid potential litigation indeed the whole self evidence is a dispute an attempt to compromise according to mcsherry testimony roberts tells make sure you point blank that he didn't deserve a commission that big and had to make sure what he would take and other words roberts w disputing we share is claiming but attempting to negotiate a classic example of the type of compromise negotiations typically precluded for the way we think everything's overwhelmingly demonstrates the existence any standard but even if it's close and we think it is a tie should go to us as the th circuit said and bradbury when that issue is doubtful the better practice is to exclude evidence of compromises or compromise  absolutely your honor before we hear the other purpose in which the trial court alternatively admitted the evidence is impermissible because it directly goes  yes right ok and you equate a bona fide dispute to whether in fact a dispute is valid but actually you know all requires you look at the employer that in other words they can be parsed out and that's what i'm trying to figure out here and i think that you sort of ignore the difference between an employer's subjective belief that a claim true suggestion or a limiting of the evidence to the jury that it was only permissible to consider it with respect to the employer's intent from the lack of of the five belief that it was argued to the jury that that was also evidence of the lady of the underlying clinic there is a court but it is missable for one reason it doesn't matter if it's not admissible for another is not right i thought that was pretty standard law might be true if there was an option to probably would be true if there was a separate claim here under the maryland wage payment and collection law yet so and so i mean if there in the st instance which directly carries a into the pro handed type of statement under rule for a way and this court set me absolutely clear the exception can't swallow the rule that the types of other point so that may very well be two separate purposes here but the five call the record correctly this record didn't parse that out to the jury and certainly didn't give a limiting correct your honor i think the reason for that is because this was merely an alternative for holding of course if the trial court had rely simply on for a b then we would have gotten to the point where we were talking about the appropriate brushing that which be the case all but address do whatever it is you want to press now thanks your honor for a little fifty argument i'm simply going to focus on the sheriff's failure to introduce evidence supporting his interpretation of the commission term contrasted with his admissions that the term order was further than to sherry's own words to reach this conclusion and make sharing his complaint alleges that defendants reasonably believed their promises would induce action by him to procure a buyer for the property under o was the construction of that term barn full of evidence and in other words there had to be something by mcsherry that he introduced at trial and show that the parties had breached his particular interpretation of the term and that's where relief the court or a jury deems appropriate the question here is whether these four passing references to a jury potentially determining other really satisfied will thirty eight rule thirty eight doesn't specify the required form of a cherry demand and it's  circuit's careful reader standard from let's speak lendale union high school according to the th circuit the purpose of rule thirty eight is to inform the court and counsel well in advance of trial as to the trial methods desired so the th circuit looks to whether a demand is sufficiently clear to alert the careful reader that a jury trial is requested on an issue its focus on notice is therefore consistent with the spirit of rule thirty eight dollars here the four passing of clinical references to a jury potentially determining other relief and the the amended complaint did not communicate mcsherry desire for a jury trial to a careful reader i think history and context of the wherefore clauses is critical to understand why this is because i didn't have a language referencing a jury determining other relief also appeared in the original complaint and the original complaint did not demand a jury trial in fact having carefully read the original complaint defendants memorialized that very understanding and the costs of a cover sheet they filed on removal and their understanding was particularly justified given that the case information report mcsherry filed in state court with the original complaint affirmed on the ambiguously was the original complaint appeared to and that's that make sure you did not desire a jury trial  i just find it very difficult to sort of overturn that discretion particularly since we're talking about of the form there's no question i mean there's a separate arguments of whether or not the jury actually reads the correct verdict but t from the rule thirty argument the court did alternatively grant make sure is motion under rule thirty nine b and we believe that the court committed to discrete errors in exercising its discretion under rule thirty nine of the st thirty nine incorporated the rule thirty eight holding three times meaning that on three of the factors the court cited the fact that mcsherry had demanded a jury trial in the arrest and the amended complaint however the motion under rule thirty nine b because his demand did satisfy rule thirty eight so this reasoning is a logical and inconsistent and can't actually constitute an alternative basis for the courts rule thirty eight dollars decision at all so we would actually argue that  in a manner that emasculates the demand and waiver provisions of rule thirty eight dollars so this court's precedent including general higher has exclusively considered when it's an abuse of discretion to deny a rule thirty nine b motion but the question here is when is it an abus discretion to grant a rule thirty nine b motion it's unclear whether these questions from the same answer but what general higher calls us is that there must be some minimum threshold a party has to satisfy before a trial court can grant a rule thirty nine factor inform that analysis but that in a valuating those factors the court also have to consider whether the thresholds selling has been made and none of the malvern factors did the court consider any thresholds showing by mcsherry instead it often focused on whether defendants had shown prejudice and said whether mcsherry had shown for example something beyond mere inadvertence which is the minimum threshold required by a number of other stuff and i believe my time is up i'd be happy to answer any other questions do we have any other questions all right thank you very much that he was concerned about his commission that's not enough i think that a party of an individual employees a concern about being a is reasonable and healthy and something that you might challenge and there's no evidence that offered a trial that mr roberts told mr mcsherry you're not getting the commission he was he was already in possession of exhibits and at that time although points were taking a position that he wasn't getting of a commission you would have you would assume or you were presented that would come out during that call that didn't happen mike rogers merely asked for you look at the totality of misstating holding because whether the parties intended the status to be part of negotiations for compromise that's what the courts analysis or invited mr roberts to provide him with a number and mr roberts never did and if the court looks at the evidence it is to tally it does not appear that mr roberts was telling us all these facts to to support what argument the argument is that this was not intended to be part of a negotiation because mr roberts was not against the testimony provided all goes to whether there were some sort of settlement discussions right i mean maybe maybe i'm just missing something i'm sorry i still don't understand it meant to settle and the the the underlying eight hundred and twenty five thousand dollars commission the court needs to look at the sort of the damages in two different groups the underlying eight hundred and twenty five thousand dollars commission and then there is the enhanced damages now the evidence was offered to substantiate my clients he underlying eight hundred and twenty five thousand dollars commission meaning my client could have offered the evidence under rule for a weighty and been accepted by the court  issued here is regarding whether or not it's a settlement offer is merely a quote person saying another he said and the other person denying it it's really there's the all of the evidence there's a lot of other evidence with regard to this in this is just  thing if they believe what they believe the sherry on the other evidence is in this on this i believe absolutely your honor i think the jury had plenty of other evidence to find in favor of  in this record and i get the point about that he said she said the problem i have is up this evidence came from the very horse's mouth that was going to write the check to settle the claim and it seems to me is the jury could just as easily have said well he said i agreement for a seventy five basis point commission for the sale of the property that along with all the other evidence you presented a trial meeting to court the jury could set any of this evidence  presented in this case which was tremendous moving on to the jury question your honor i realize i'm very short on time  landed the trial we've actually schedule was finally put down on the calendar and how many how many much time it went between the two of them how much court we don't have any further questions do we have any questions my colleagues thank you thank you for your argument and i think there's a brief or a bottle yes your honor very brief or volatile from settlement evidence was inadmissible to show bad faith because it would vitiate the policy objectives of world for a way in other words it was not a permissible other purpose under rule for a b and we haven't seen any case argument that didn't want to read i'm sorry i did want to briefly respond on that and i would just point out that this court's recent lander's man opinion notes that in order for never did injury ruling to be harmless we must find that the judgment was not substantially swayed by the air in other words it would have to be an express finding by this court should have find that the evidence was erroneous lee admitted st and since and i would also point out that the stock trial court pressley incorporated as well thirty eight analysis in other words it didn't undergo a further analysis under rule thirty nine assuming that the rules thirty a jury trial had went through the summary judgment phase of course and it vies caught our clients and did all the things that lawyers do when they know it's going to be a bench trial up until the point where the court was trying to figure out when ok thank you thank you ron involved i have nothing further unless the court does it in for these reasons we would ask that the court read and with instructions and our judgment in favor of defendants i make any argument with richard with regard to the entry of the judgment severally it was on actual notice of the issue given the nature of the questions from the jury the jury was asking notice of such an issue and not doing anything or raising the issue to court prior to the entry of the judgment should be fatal to a rule fifty nine dollars motion because the court went ahead and did and  judgment against each of the defendants separately which ironically defendants requested that the verdict be organized that way and in that instance they should  your ok thank you very much do we have a response to that you reserve time for that that was the final all right thank you very much you