good morning your honor request five minutes rebuttal time for may or may please the court my name is robert gordon i represent the appellant's in this case and cross the pelleas lawyers title company in this case involving improper competitive conduct of a trusted employee in a competing title company  district court committed several errors and ruling on summary judgment and disposing on two primary issues that i want to raise in this oral argument of appeal particularly the district court summary disposition as a matter of law the issues of proximate cause and whether or not the defendants possessed the requisite malicious state of mind these issues are fact intensive and generally left for a jury and the jury's province to determine whether there are inferences that can be drawn from the evidence presented but the district court removed the issue from the jury on summary disposition and as a matter of law in doing so it applied the wrong improper standards a law and failed to and draw inferences and construe the evidence in the light most favorable to lawyers title as it's required to do at the time and for these reasons we're asking the court to reverse these summary judgment judgment as a matter of law rulings and like to address three primary issues first the district courts grant to miss bit unsure of partial summary judgment on the issue of proximate cause second the district courts and grant of summary judgment favor of king in title from the jury at the close of all evidence finding there is no evidence of actual malice under the punitive damages standard for misspent injure as a release of the partial summary judgment this is what lawyers titles refer to as the excluded causation theory  they're essentially two types of wrongful conduct alleged by lawyers title tortious interference one type of conduct and breach of duty as another type of conduct and granting partial summary judgments for  court essentially said you can get damages for the tortious interference conduct that occurred in a very limited window between june six and june twenty second but you can't get any damages for the breach of  breach of duty of loyalty by recruiting her coworkers the judge essentially held that although this is a highly fact intensive issue that there simply was too tenuous a theory of causation to get the issue leave and go compete that was the breach of duty this this type of competition this type of competition has been found in many cases to constitute breach of duty of loyalty and fiduciary duty despite the fact that  and the point being that she breach of duty by recruiting the employees because of that breach because of that improper recruiting the employees left and the customers followed it's a straight forward issue causation at that point are we distinguishing that your position is that would have been ok if she quit or at least for these purposes you'd be willing to take that but she couldn't ask her coworker to go with her i think your honor it  would have been ok if she had quit by herself and there are two issues raised in that question one is why did she quit and she was why did her coworkers quit the evidence of the record showed that she quit because of her breaches of duty she wasn't going to leave the evidence showed if she couldn't round up the other employees to go with her compensation at the new company a thirty percent part owner was based on thirty percent of the profits was going to be here she was giving up commission base salary in exchange for thirty percent ownership in the new competing enterprise and she needed to she needed assurances from kingdom title that she could recruit her coworkers and she needed assurances from her coworkers that they were going to go with her or else she risk losing her customer base and book a business and thereby losing her her compensation the evidence showed that this was the case she originally in may this  occurred between may and the end of june of two thousand and twelve she originally offered a position asked her coworker if she would be with her her coworker in her own words freaked out and said she wouldn't leave and at that point miss bit unsure call back offer that first salary that she had negotiated with mr moore they discussed health insurance she made the offer a second time on june sixth and this time misrata really accepted it but she went through all these machinations of getting a the kingdoms relationship with rowley is there anything wrong with them trying to hire somebody away from a competitor absolutely not they certainly have a privilege to compete as a competitor in the industry and if they would have  if they would have made her an offer that would have been ok but they did instead they used to be a bit unsure who herself could also have discussed moving in and taken that offer it's only because bitten in recruiting the coworkers the coworkers left the injury left and the customers followed it's this causation theory that the court excluded and it's this very causation theory that this court affirmed in the chicago tunnel versus madison case very similar facts almost identical and that case mr magnusson breached his duty not to compete by that there wasn't that here other actually was a duty not to compete while she was employed with the company that by these essentially two coworkers talking about exercising their rights that breaches the duty of loyalty they did more than talk about their that miss business or went back and talked to mr early and gave her the same sales pitch so she was more they were more than just discussing the possibility of leaving she was soliciting was fred rowley and that was has been considered competition in both the madison case other cases a very similar case in the arizona court of appeals where the same causation theory was also a firm and in the magnusson case this court wrap this up and kingdom could have solicited both of them and even told them the wonders if they both came but if the two if one of them was more enthusiastic than the other is bitten sure in this case that's what breach is her duty of loyalty yes well at that she needed to remain mum about what both of them were facing but there's a fine line between remaining mom and actively soliciting your coworker on behalf or and behalf of with the authorization of a competing enterprise after you've already negotiated salary and benefits for that person and that was that the problem that she wasn't just advocating come with me it's that she was advocating on behalf of the company that's certainly part of the problem had she merely asked her to come with her that may have been a closer call in this case but that's not what happened she would recruited her coworkers she talked to him about the benefits the new company the same things that they had talked to miss pittenger about when they were recruiting her and this is exactly what the court said that this causation theory is the same thing i'm magnussen when this when ma recruited chicago title employees those employees were under post employment not compete those employees that he recruited were also at will but this court ruled that that recruiting of out will employees with no post employment not competes that those actions were properly considered on the issue of proximate cause for the damages that chicago title suffered as a result of that improper recruiting and it's the same thing that happened in the arizona case even more apt because the person who was doing the wrongful conduct in arizona misspoke was the branch manager she was also reaching for fiduciary duties by rounding up the employees and moving the same things she negotiated salaries she rounded up the employees they all left in the same day at middleby it was on a grander scale it was on the order of twenty employees but this is the same exact conduct just on a smaller scale and it's the same causation theory that this court has affirmed as a relates to the civil conspiracy see the red light has come on if you want to morning judge judges my name's nicholas the financial representing title in this case who is the subsequent hiring employer as mr port rightfully acknowledges these are at will employees they were free to go with my client the facts though are not as plain as consul would spin it for this argument purposes basically brian sole practitioner so owner of this company kingdom title  he said come join a company and will form a separate company at which point she agreed and accept it it was only at that point after she accepted the job that she said to brian would you also consider hiring some of these other ones i'm worried about these other employees because if i'm gone they're going to be gone it was only a short time you're a lawyer were lawyers title was looking to get rid of debbie now she is  valuable revenue generating employee not the facts in this case at all there was no proof at the summary judgment stage that any employees or that any customers left to go with debbie sarah was the sales person sarah was the one who was interested in hiring the argument that and then we're talking about a five billion dollar your company ten thousand employees eight hundred offices around the country we're talking about in an ad will employ no no compete but judge quinn and obviously we're here do to not and to argue but i also agree with judge quinn throwing this case out has to us on the claim of malicious interference there was no malice here there was no intent to injure it was merely hiring an apple employee who has a right to leave you know it would be i would be surprised to hear an employer come before this court and say well that at will employee can oh i can let that person go but that person can leave us they're not arguing that they're also not arguing which i think is very significant judge biogs mentioned it that there's nothing wrong with had bryant asked to hire deputy prime didn't care about hiring debbie debbie just came along after sarah agreed to take the job and i think that's very very crucial here in understanding the facts but there was no package deal there was no proof and if you go through the plaintiffs brief you will see no cite to any evidence that this was a package deal and that sarah would only come if that becomes whether that's not the facts and they don't cite any facts that that's their wishful thinking but that's not the facts of this week or two is the revenue producer sarah is the revenue producer the other person is a clerical person she's the one that would glad gather up the paperwork at the closing i mean the escrow the cough syrup if she's not an officer of the company she is the one that gathers up when you when you close on a house gets the papers disperses the funds revenue they're saying any employee any employee that satisfies a customer and the customer then will come back because that employee's been a good company is a revenue generating employ that's their argument but debbie doesn't go out and solicited money there was no proof before judge women that the hiring of debbie caused any customers to go and they're not making that argument today with what they'll cast the argument into this because sera and debbie both laughed it really customers follow they acknowledge this is a relationship type business that competitors in them including a higher sales person from other competitors that's the nature of the business that's ok if they want to protect themselves they should have a non computer now they're also arguing today that had brian waited two weeks or a week and a half approached debbie that would be ok that's not that's around forty six thousand a year fine and that was the extent of brian moore's knowledge of debbie fratto role so if she wanted to come ok there was no contingent offer and if  to help this court sort through all this paperwork if you just look at the affidavit of brime or the affidavit asaram binge or that was presented to judge when at the time he made his decision you'll see debbie made or sarah made the decision to leave and then after that debbie was said hey if you want to go you can go to debbie could a state that was not of concern there was no malicious combination to injure another so he hasn't talked about a conspiracy i'm going to  thank you and good morning my name's frank witchy and i represent a bit injured in this matter the first thing that i'd like to point out is a misnomer that is a phrase the x causation theory not excluded to make whatever arguments they wanted about it it was throughout the trial it was the thing of their case now on appeal they're calling it the excluded causation theory is just not correct  would like to talk about the cross appeal for a moment that that touches on some of the issues regarding the summary judgment motion when this case began lawyers title sought hundreds of thousands of dollars  lost profits as if there was some type of a non compete agreement that was perpetual into the future we felt it necessary to try to limit exactly what damages could be asked for here in the limit those d m it is to those that were approximately caused by an actual tort the torts that are three that were left for consideration were breach of loyalty breach of duty in the business interference were duties that she had only while she was employed after employment she was free to interfere fairly on a competitive basis in cio but no duties the damages must extend then from conduct which ms bid injure participated in while she was employed with lawyers the judge made a correct decision as a matter of summary judgment to limit those damages there was some evidence in this case that there may have been some loyalty issues that dealt with six particular transactions where there was actual abner reason you say six when the judge seemed to say five i kept trying i think maybe you want it trial there was another one that was presented and maybe even that is a part of the summary judgment there was there was five in these transactions though at trial totaled and this was the number of the lawyers gave three thousand two hundred sixty three dollars but there was evidence there was a customer that said sarah understand you're leaving to go to kingdom title can i place my word or with kingdom title so you can close that they're sure go ahead and do that while she was employed probably wasn't the thing to do though that actions while still employed up till june twenty two could have consequences later on so that you could potentially that evidence damages that actually occurred la on i hundred percent agree with that however there has to someone's got it it needs to be tied together as a matter of causation for instance what they what evidence did they provide they just provided that lawyers title had generally lower profits after sara left and their customers left but they never tied that lower profit into anything that sarah did while she was an addict of thirteen nothing was was tied to that in fact there was no evidence of that that caused any type of damage at all first of all the reading of e mails was in the employee policy manual that was something that the employees were supposed to do on a regular basis as they close deals they were to take their e mails and delete them she what she a race to was a contact her personal contact list now it was on the computer of lawyers title at the time she didn't view it as property of lawyers to it was testimony that it took four days to get that to recreate it that's what they testified to they never they never put that in terms of any type of damage any type of monetary damage whatsoever on that and essentially what their theme of the case was and they did so they throw out all these possibilities but really what they keep coming back to are statements that like this statements that they say that this is a people business and even in their own brief they say this is a relationship people  business people like doing business with people they like it is customary this is their evidence and the theme of their case it is customary for customers they say to follow the employee where when they move to a new company they called sera sera sera get for the customers so they did provide the most likely reason that the customers left they liked sarabeth injure that's the the reason that they the play in this whole manner concerning the the hiring of debbie forever rolly again not one customer was put on the stand that said i want to lawyers title because i want to kingdom title when there was testimony that covered the next three months right there were there was evidence of the the business or profits that lawyers title made and the argument was that the profits were lower and it was lower because and then they start throwing out all these concepts can you run them up the flagpole to see if anyone salutes but they provided no evidence that that anything anything other than the thirty two hundred dollar figure evidence i thought was that that would have been taken in june would come to fruition in july and august right there if there was some evidence of the life of a  but there may very well have been other calls that came into her that were not documented that no evidence of that well just hear me out ok if it if calls in june show up in the revenue in july then if she didn't do anything then their revenue in july should have been solid and it should have dropped off after that if the money doesn't show up until but if she had done everything and accepted all of the orders and left them there for lawyers title and left presumably july w fine month at lawyers title because they would show up the next month well not the largest the largest months in the title insurance business are in the spring time ie in the early song with the you know things transaction start a turn at that point in time that's the busiest time so there is usually a natural drop off of revenue so there certainly are other explanations there are but that was that the jury the jury didn't buy it was the whole amounts but they bought that there was that there were other other diversions that she didn't get caught red handed on right i mean isn't that the most plausible explanation no i don't think so where do you think they came up with number i do i don't know and i think that's why the rule fifty b motion should have been granted because there was no substance behind any any number other than thirty three thousand two hundred sixty eight so if if they had come up with thirty thousand two hundred sixty eight it would have been ok three thousand two hundred  the judgment should be reduced by nine thousand seven hundred sixty five dollars to get it to the three thousand two hundred sixty three ready to chase what you're saying is anything above that three thousand  the bottle thank you thank you i want to take up that last point on the on the damages issue there was plenty of evidence  direct evidence as to what as to how the jury could have come up with that number there was evidence in the record that miss bit in juror called at least three customers before she looked and there was evidence that those three customers a part of the six transactions were from the the six that we know of were directly from one or two of those customers so we have evidence that she contacted the customers and between june sixth of june twenty second before she left orders started flowing right there we also had was the open  closed order report from kingdom title which showed all of the limited only to the former customers of lawyers title so there's open and closed door to report only listing where titles customers what their business was for the entire year two thousand and twelve a kingdom title all of those customers had almost zero transactions between before june sixth before the date she accepted the offer from june sixth through the end of june there were about twenty transactions from customers of lawyers title that magically started opening a kingdom title that is that in and of itself is sufficient for the jury drawing all reasonable inferences to say that miss bit injure by contacting these clients steered the transactions over to candy little what was the evidence that that would appeal the problem so the evidence was there were about as we discussed about five or six transactions about thirty two hundred dollars in profits the jury had that information so they could come up with a per profit per transaction profit all they do is take the per transaction profit multiply it by the twenty or so transactions between june sixth the other june and that comes out to about ten thousand dollars when you add that to the three that's now we're we're getting into the ballpark we're almost exactly what the jury awarded so the evidence was there and the causation was there and that's using only the narrow causation that the judge allowed to get to the jury just that conduct within that short window of mr which he says that the you know the excluded causation theory is a misnomer but the court specifically said in the summ judgment ruling that pittenger and fred really may be liable for damages caused by the solicitation of customers that's the direct solicitation but not for lost profits simply because they left of course the court misconstrue the causation transaction is three months then that anything after that is due to the fact of their leaving not the fact they were breaching their duty while they were there so the question becomes why did they leave and if they left because of a breach that caused the customer select the evidence is not proper for a reasonable time this is why this is the jury question this is this is what happened in madison and then you're only talking evidence is clear at deposition this was presented at summary judgment that fragile rowley conducted the day to day business of the of the operations she entered acted with the customers the customers nuber they trusted her she saw the other problems they liked working with her that was the evidence from injured deposition this is why sarah needed debbie leave so she wouldn't leave and give lawyers title an opportunity a fair opportunity as they would have had to count make a counteroffer to at least keep debbie and at least keep some of the business instead and in secret she breached her duty of loyalty by competing against her employer rounding up the employees to leave again the evidence was that she wouldn't have left neither of these employees would have left if she couldn't if she hadn't breached her duties and rounded up all the employees a negotiated with a competitor it's not just the leaving the cause that caused the injury it's the breach a breach of duty by competing to cause said that there was no evidence of malice in defined malice explicitly as intent to injure that's actual malice that's not legal mouse as defined by the god in court legal malice is also referred to as implied  legally proper for the jury to infer and impute malice based upon the other the evidence of the other elements of conspiracy if i could ask one question just going back to your monetary theory just to make sure that i have this right we had five or six specific transactions identified avon lake route forty three the twenty you then referred to twenty contracts that were opened with kingdom from x title customers by the end of june and those do not include the five or six that are specifically identified that's correct ok so you get basically twenty is three times six or three times and a bit three times thirty two hundred is pretty close to the extra exact thank you exactly what the outcome the jury had a chance to award but thirty four thousand plus the three thousand in chose not to not buying your theory or whatever how would how would the damages have been different if if these claims that gone to the jury well the jury was precluded from hearing evidence and argument a you know we had a burden to prove causation and we weren't allowed to present evidence or argument that the breach of duty and recruiting bit injure caused the loss of business which continued to some point in the future which would have been up to be in recruiting britain i thought i'm sorry in recruiting federally yes correct we weren't allowed to present that evidence who weren't allowed to present that argument  as a proximate cause and the drugs been considerate now if you look at the magazine case and the polk case where the jury with this court affirmed that causation theory and the jury did have an opportunity to consider it and those cases they were lost profits in the area of approximately two years into the future and at that point apparently found that anything beyond that was to disconnected and to attenuated but they had the opportunity to make that decisions for themselves