finding the existence of a contract when one no contract was revealed during pretrial discovery in iraq a tory responses to the plaintiff played alternative theories of recovery inconsistent with the formation of contract three the plaintiffs testified that no contract was formed for the plaintiffs acknowledged they failed to conclude that the negotiations to come to a written contract five none of the elements of contract formation represented the offer acceptance were consideration and six the alleged terms of the contract were unknown to the defendant nonetheless the trial court error when it allowed the jury to consider a contract claim based on the assumption of the obligations of the dns really contract many of these six factors are in a related for example because the plaintiff file theories of recovery are inconsistent with contracts such as quasi contract and unjust request for contract formation elements the d'angelico contract is not even mentioned in response to iraq it's worthwhile no implied contract form through silence is mentioned either despite the specific request for any implied contract ninth circuit has ruled in other cases that discovery requirements have meaning and they will be enforced to cite the imax case vs cinema technology inc as a case where the ninth circuit enforces those requirements the in the i cases the second one required to believe that statements against interest are the conclusive the eighth circuit case of barnett versus terminal railroad the tenth circuit case of kansas transport versus browning the supreme court versus johnson the sixth circuit in bowl ambersons louisville national railroad this principle regarding statements against interest is a matter of widely accepted evidentiary law it's also a matter of judicial  state of mind addie curricular time and that well perhaps early in negotiations you could believe there were there was not a contract subsequently a contract could be for your honor i understand the point you're trying to make but there were numerous representations and there was temporariness correspondence throughout this entire time period all of which indicate that there is no contract form discourse upon it's what is the commission great it's going to be what when are we going when my going to paid i understand that we cannot reach an agreement in november of one thousand nine hundred seventy all this contemporary correspondence plus when you add in our to the civic request and discovery for identify the contract give us the offer give us the acceptance give us the consideration none of this is provided and then the explicit admissions that i didn't think i had came to an agreement with mr cameron i don't think he was thinking the same thing that i was thinking makes clear that we have no obligation to pay this it also makes clear that it's not asking mr cameron up to do anything it's simply a statement that we want to work with you in the future we're going to set aside some money for you now this certain cameron testified that everything he did was on his own initiative you were not happy but you're saying there was no evidence of any contract and we're here trying to review is what the jury heard and whether it could infer from the evidence that there was an implied contract and an understanding and you're saying well no there's no evidence whatsoever and if you relied on in iraq a tory answer number twelve and therefore  all of this is just made out of whole cloth and yet there are clearly seems to be some evidence in the record of dealings between the two parties with respect to the contract issue and some notion that your position is theirs are zero contract nothing at all that it's not a question of them out it's a question of no contract at all and i think that's correct your honor i'm sorry v the notion that these sorts of vague statements back and forth create a acceptance there is understand you disagree with that but i'm just trying to understand why you're saying that there isn't enough for a jury because you say just today because mr cameron himself says he did not believe he had a contract well in didn't he didn't have a written contract he did not have an agreement here are was a question that he had any contract whatsoever or did he have a written contract what was the context of the question there was a written contract of the you know roger kornberg well you know i know that when you said when he chemerinsky counsel fails to address the line of authority but with respect to these admissions that they create an obligation for the courts to take that issue away that a party cannot do better than his own judicial admission but you know that those cases are awfully old and they're all on the circuit i understand that your honor there are no place to instruct it but to deal with this issue and they are not addressed by the post in counsel and i understand that is what i mean by saying that the trial court here was obligated to take that supports that here it's not it's a fairly bold proposition i think your honor i think it's unusual for a jury to find that a contract exists in one of the parties what both of the parties don't believe there is talk rack and i think that's why it's so rarely found item but it is dispute following that the written requirement of the contract results in a lower payment than what the jury calculated or what the jury adopted from the plaintiff he claims that the guidelines were orally changed by the d n c to modify the way commissions were calculated and we never saw the contract never knew anything about the contract and as a result of the parole evidence apparently the jury has gone beyond the terms of the the the actually contract calculated in two hundred four thousand dollars of additional receipts which was stipulated was never received and has also calculated on a per annum basis instead of a per annum per client basis those are based on the written language of the contract those are clear errors this court has the ability to interpret the contract terms and that should be corrected with the jury in the trial below advised of the two hundred four thousand dollars and never been received yes your honor it was it was written it was state good morning cameron our speak for fred camerino i'd like to address the appeal first if i buy a house and i couple days later i see a landscape man coming up and i say who are you and he says i'm the landscape guy and i say well what he doing here and he says i have a written contract with the owner of this house to do the landscaping and i said well that interests me would you do my landscaping is i'm the new owner and he says sure will you pay me and i said yeah i'll are your contract one hundred percent go ahead and do the landscaping now as a contract being formed i don't know i would think so but that's not for me to  time there's no way you can conclude that a jury is out of bounds in saying that a contract has been formed in those circumstances here you have anthony de rosa calling up fred cameron not within seventy two hours after rosa says you will honor your will on your contract one hundred percent of the jury hears that testimony then fred goes to mexico makes calls on the customers inspects the equipment lends  sixty one thousand dollars a point which i will return to presently mr cameron it is just going chronologically as of february twenty second one nine hundred ninety eight did you think you had a contract with sam and if the answer isn't home now i wasn't there you're honest weren't there i don't know what that meant or didn't mean my suspicion is that fred thought that well things have fallen apart so badly by february of one thousand nine hundred eighty you know i wasn't a sales agent for sand anymore but that technical concern for detail can be deflated by looking at trial exhibit nine this is the offer that santa made to fred camerino to pay him a commission if he helps sell product to gear jury determined that a contract was formed there is no statute of frauds issue the contract was formed orally when anthony de rosa says will you work for us will honor your commissions fred goes ahead and works for them and what we have in this case is sort of an oral contract that incorporates by reference as it were a written contract namely the preexisting one that my client had with g angele the company that filed bankruptcy  special verdict form that was submitted to the jury there are there are four special verdicts was a contract formed if your answer is no then decide whether any compensation is owed under a quasi contract theory well the jury answered yes the jury well that may be your honor but it's not an error that has been claimed in this case and i think you know we're testing a sufficiency of the evidence to support the contract  and we're i would just return to what i've already said that if there is a clearly written contract in existence if my landscaping guy has a contract with a former owner and i say hey will you do my landscaping i'll honor that interesting statute of frauds contract formation questions that might have been raised and litigated in this case the issue if it's brought here is whether the jury verdict should be thrown out and i submit that under that deferential standard of review testified that he watched through the arithmetic and submitted that amount of seventy seven thousand and seventy seven thousand four hundred sixteen dollars and eighty cents the jury verdict was one hundred fifty three dollars and five cents less than the amount mr cameron i asked for right i'm aware of no basis in the record that explains that one hundred fifty three dollars and five stand increment and so what do we do with that well because it's because against my client i mean i'm from my perspective it's done in a miss i mean if and you know the jury might have taken off one hundred fifty three dollars because they thought claim pre judgment interest if arizona law your honor requires that the demand be liquidated not that the amount awarded by the jury be liquidated so as long as you are able to present a demand no dispute that is in title meant to interest exists and there is no dispute that he adequately presented and preserve that claim the only defense to interest presented by sam is that mr cameron i testified that he had no entitlement to interest under the contract which is true testimony as far as it goes he likewise had no entitle meant to attorney's fees under the contract and the ones i don't want to taxable cost under the contract but the fact we'd like to see the judgement affirm but a reunion for the inclusion of pre judgment interest in the in the judgment of just so i understand how it works if i make a demand for a contract i say my demand is for two hundred fifty thousand dollars that's what i believe my contract claim is for two hundred fifty thousand dollars and the jury award seventy seven thousand dollars then under arizona law because i made  mathematically calculable demand then you can just run over the raiders times the number whatever the three fifths in the you get prejudgment interest your honest point is half right in half incorrect the fact that the jury a as long as your initial claim was liquidated and what's unclear from your honest question is whether the two hundred fifty thousand dollars figure if that's pulled out of the air and is just kind of what i feel like asking for today that it's not liquidated if there's  stamp for business reasons decided to issue a credit to its customer trial exhibit five says that sam told c s i hey you can get a two hundred four thousand dollars credit on future purchases of other stuff you may want to buy from net amount of cash that santa actually received because that's what honoring your commissions one hundred percent means as to the fraud we also would likely remain on a reversal of the the rule fifty ruling law would apply for the first time your honor there's a there's a number of situations where this is raised with respect to different issues now with respect to procedural issues with knowledge of the arizona law apply but when issues came up that  to well first of all we weren't aware that the contract was going to be this the angele contract that signed in maryland and we once we were informed that this was their theory counsel i think i think you're avoiding the question when did you raise that that you can explain why you raised it late that first winter to raise it up we don't believe it was later on but we raised it certainly during the trial during the jury instructions tender and instruction based on maryland law we tendered instructions for general law that would also include maryland laws from a national hornbook and on jury instructions which would be consistent with maryland law and that's what we argued to the court and what what the court decided was to take the view is not that we are objecting instruction were objecting to the fact that the decision to go to the jury was based on arizona law as the judge interpreted it that you could blue pencil and if there are missing elements you could add those elements in that's what we're not not with the jury was instructed improperly once you've got the decision with respect to the fraud case your honor that the quickly address that there's a distortion in the in the case that they say that there was true there is no promise that he will be honored which is then backed away from that leaves the only thing the relative to the fraud case as the false statement they can point to is made in january and it says that we have set money aside in a special account when in fact there is no physical separation of that money of course you can rely on that statement the work that already been done there is no justifiable reliance on any false statement in the fraud count was properly dismissed thank you for your time