all of the terms that are necessary to establish a contract in this particular case under the bare v chase case the question was is are the facts sufficiently definitive enough for that performance can be rendered with reasonable certainty but look just take for example just prior to the closing in december thirty first of those of an earlier that month the letter was sent by the three employees to mr chabot mr donovan and they know that they did not have a whim agreements a request that they provide us with your proposal so quote provide us with your proposal on what composition we can expect for such that severs as soon as possible that seems to indicate pretty clearly there just wasn't yet an agreement there was there was a desire to get to an agreement your honor with all due respect and this is why there are so many questions of fact in this case you have to look at the relationship that the gentleman had with mr shivani for over thirty years this was a man of integrity  honor when he said he was going to do something he did it there was never ever a question as to what this gentleman was going to do you have to show what the it would have then that's correct and there's plenty of evidence before the record that shows what not only what the it was judge when how by whom to answer questions judge him bro that was their effort because it was their understanding and it's in the record it was their understanding that in order for this deal to close the three executive members of the management team the troika for it to be heard that term they had to be locked up in an employment agreement because it was their understanding they were led to believe but where they actually locked up  owner he was retired and in florida if it wasn't for these three people that ran the company on a day to day basis were locked up and there was no value in the company forgot us had no interest in this company for it wasn't for these three and so they were trying of charges they were trying to do they best they could in the most polite respectful manner that they could with this gentleman that they'd worked with thirty years to say let's get it done we don't want to hope we don't want to be the ones to hold up this closing let's get this done and if i may your honor but what you would need there is something for example missionaries say i understand we are going to get it done and i promise you for your willingness to stay i am going to give you something and i believe the record is filled with those promises your honor if i may well go ahead with what you know  agreement what would you estimate i would i would establish that there was enough evidence before the record that there was an agreement that was in a written contract but there's enough evidence to show that there was an understanding it was a meeting of the minds between the parties and then i also believe there was enough before the record to show what that meeting of the mine was not only were references where was it not what they were representations made by mr shivani himself there were a number of communications made by the troika to mr shivani where the specific issue about a two percent of the purchase price was included about who was going to pay that the owners of the company there are statements made directly by the owners of the company that they will take responsibility if i'm a judge i have every intent i will absolutely do this in the letter by mr donovan i'm sorry by mr when he finally in august of two thousand and eight after two years of communicating with the troika the owners of s c c made representations not s c c a made but the owners of s ellison's the civically mr shivani mr shivani specifically said that he will do something hang in there we will take care of you and all of these statements that were fact create assent and that is this here's a bit mr shivani no one could argue his business acting and nobody can argue how successful he was it's clearly a question of fact as to whether you have these three executives that are running his company he trusts them to run his company on a day to day basis yet they are communicating with him on a number of occasions and he does not respond he never offers a letter refuting it he never contests it he never says no i'm not giving you two percent he never says no the individual owners are not going to be responsible all these are memorialized in writings to mr shivani and he never quit as it is looks as if what they were doing is they were still negotiating the contract that i mean that with for example the terms of the first  agreements they differed i mean that so the second draft looks like it's counterproposal i mean this is almost this is classic contract formation and you you need more something that is significantly more substantial to show that there is a contract actually for your own if you take a look at the t extrinsic evidence that's attached the owners the bonding companies and the owners asked the troika to put together a proposal they did that it was presented to mr shivani for whatever reason he did not like the form that it took but the write but if you look at the record every time that it was the gentleman tried to get mr shivani to sign on the dotted line it was always about just that it was never about we need to continue negotiating it was just we need to get this done communicating with them altogether he did it he told the troika that my lawyers told me to stop communicating with you and for the very first time judge for the very first time in august of two thousand and eight after getting communications from two thousand and six two thousand and seven meetings happened in the meeting you know that's not correct it was only until after the closing after the deal went down after mr shivani got his seventy five million dollars did he say there must be a misunderstanding and i would love to point to that letter itself your honor because in that letter he specifically says he uses the language that join exhibit number one nine four he specifically refers to the owners of eight nine ten three plus years there was no reconciliation of whatever the purported arrangement was correct well it was actually between zero six is when the body companies requested the and i'd like to point out that it wasn't just an employment agreement as an employment agreement itself or to sufficient agreement and if you look at this there were different forms with respect to the form of respect itself the employment agreement the sale participation agreement was the same document it just had handwriting an employment agreement that had other significant provisions not all of which were were ironed out prior to the closing but you already did this ghost is it you're better or you're i mean isn't your better argument that the promis again i'm going to go to the definitiveness of the the whether it was the agreement that they had or the relationship in the promise that was made the promises that were made mr shivani would use the term i will take care of you i i promise because they are looking to get these executives tied up because we're not going to be here forever one was in his eighty's one was in his late seventy's the fact of the matter is they were marketing the company and they made representations to my client you helped facilitate the sale you counsel us on it since you're the ones running the business on a day to day basis and we'll take care you sell participation is a very common incentive in businesses it was not uncommon in this one at all and when they counseled the owners on a potential sixty million dollar sale to the cadia they specifically said we don't think this is a good idea this is not the best interest of the company this is not the best interest of the owners and sure enough they ended up selling the company for one hundred fifty million dollars one year later two got us and in mr donovan settlement agreement with the gentleman he specifically wrote for your to support the cooperation and assistance in the cell that was the realize that was the representation made to them and they rely on it figuring thirty years we can trust these they say they're going to do something they do it we're not going to go and look for another job they did in the testimony we didn't try to find another job why would we we know this company to be marketed to sell we have the potential of earning a significant incentive as told to us by the owners why should we look for another job why should we do any of that we're going to trust the people that have told us what they're going to do and another piece of evidence that i think is critical  purchase price the handwritten change by mr sharon himself was two percent we believe that it was two percent as mr chip only wrote that term in every conversation every document that's in the record that was either the inguished significantly in bear there was no it was not even a range as i recall there was no structure this when we have a range this one we're going to take the position it's two percent but even if someone wants to take a position it was between one point six six and two when percentage was a stablished two percent not just in his own handwriting but more lies in a letter from jim hamill when moralized in a letter from the troika and i think it's telling what mr donovan did even though the record is clear that the two individuals clearly stated that they were going to do things on their own mr donovan offered them seven hundred fifty thousand dollars each and mystic a sense when he wrote to mr shivani saying we settled our issue with ronnie with ray and even though it was half of what we expected and seven hundred fifty thousand dollars payment is half of the two percent number is half of one point five so there is additional extrinsic evidence to show the the record to show that these two owners have stated in a numerous fashion that they would undertake this responsibility individually it shows the meeting of the minds it shows what the intent was of the parties it certainly shows the reasonable expectation was maybe that's the only issue in this clearly to the detriment to me the only issue is how reasonable was that reliance mr backers are going with their work with these guys for thirty years they kept getting assurance from this   mr record seven hundred fifty thousand dollars that that was paid even though in compromise is one half of the two percent of your arguing that the deal was for two percent of the proceeds well the payment that they receive from the one person who pay totally consistent with that as proof of what their understanding would have ben and proof of are reasonable the reliances why isn't that a pretty powerful way of looking at this case except for the fact that you lose why isn't th here for two reasons roger first of all with respect to the reliance issue it might be as you say reasonable to rely in terms of you know they're believing that he was going example in the commerce bank we didn't think the look of the job they stayed with this and it was you know there was an agreement you get down to the closing time they say you know hey we're getting close we really need to have an agreement summary judgment or we just now jury to sort of that again they may not win what the the facts are nonetheless undisputed and they didn't incur any financial detriment they didn't encourage any detriment at all in relying on mr chavez on his promise not to like for example in the commerce bank case the commerce commerce bank wasn't suing to put the deal for road what they wanted was and the sellers were saying you know let's get this deal done they went and commerce bank went and spent forty five thousand dollars to fix up the the building the space where the buyers running their business and they were suing to get that forty five thousand dollars back because they had incurred that detriment in reliance on the deal going through that separate and apart from enforcing the underlying deal boston they were in forcing the lease they weren't they didn't want the deal they were enforcing the underlying employment agreement they were suing to get the air out of pocket a permit or permission to go get a dog the lady went out and got a dog there's not any of that sort of out of pocket out of pocket detrimental reliance that mr s later mr hamel incurred what they want to do is enforce the under the contractual promise without having to show up for an acceptance without having any  why is there would have but they did they didn't change their position to their detriment but i think i'm doing the same thing that they were doing before they got paid the same amount of money they got their bonuses they got paid everything that they had been getting before they did example signing on with an employment agreement with a restrictive covenant continued employment can be consideration for the the signing up for you know you know i shareholders they got paid piles and piles of money people told them you know we don't want you to leave you stay here and that we're going to get taken care of there was talk a lot of those lives but taking care of was nothing had never promised him any specific amount of money he said or anything in particular he said we i'll do something for you even mr donovan said he and in the end he did nothing but the end it comes down to zero they state their card game well it was part of a negotiation of a much broader sed negotiation and if i might point out to your honor that offer they paid them about four hundred ninety thousand dollars a year into angel in terms of their percentage of the sale not the so it's zero one zero zero zero and if if they want to if they're saying that those agreements memorialize he's testified it is deposition that he felt that they deserved it but he also testified in his deposition that there was never any agreement to pay them two percent he never agreed to that and the their compensation and always come through the company they have been employees of the company they didn't work for mr donovan they didn't work for mr sharon and also just to circle back to us about the percentage of mr donovan  way that they drafted their letters because how do you kill two men of that statute and say do it you have to ask politely you have to frame your letters in a relatively conservative manner and this was not a continued negotiation as i believe you mentioned judge ambrose this was an attempt to get these two gentlemen that said they were going to do something which by the way mr shivani admitted in his deposition that he was going to do something and he further admitted at his deposition that he didn't end up doing anything and the do something is exactly that what from what happened by the way with the what caused things is to fall apart to do something to go from something to nothing nothing in the middle mr donovan to mr sharon he did not get along they did not get along at all and because of the logistics of the two of them trying to get together to do anything from a business point of view the logistics of mr shivani coming up from florida once or two or three times a year the logistics of my three clients that were out in the field doing what they did every single day from five thirty in the morning until whenever at the end of the night logistically it was impossible to get everyone together particularly mr donovan mr shivani together in a room to get it done and logistically that was a problem then my distinguished panel may be much more and you know efficient with electronics but i'm not and i can imagine they're not as matter of fact whenever i try to communicate with my clients it's the old fashioned way really meet in person or it's over the phone it's not an e mail so i can imagine back then we're talking the construction industry i don't know how fluent they were with blackberries and whatnot but it if i may just or respond to some of the things that mr heller said for bam forbearance is an essential element in reliance and you're correct judge greenberg that i believe it was the haverty case that held that you don't need or might have been the boss because you don't need to change your job to show that you relied on something that there was consideration your forbearance alone the fact that you did not look for another job the mere fact that the thirty years you said you were going to do something in the record is clear that thirty some way of getting here and the one with a value of zero that's why i try to use in algeria earlier it's not like say we're going to pay you money and what that money is who knows or we're going to give you a piece of the golf course we'll give you some equipment but when i can tell you it's a bulldozer or a tractor where this was we know exactly what it was we know what it was we know by whom was going to pay because all both mr shivani mr donovan in numerous documents including your honor there was a settlement agreement executed by the troika with mr donovan in exchange for the money and in that settlement agreement it specifically says by mr donovan i told you that i would pay you a bonus in an amount and on the terms out of my fifty percent share of the net proceeds i and that's the point i'd like to make in all of the communications mr shivani i will take care of you hang in there that was another thing judge you mention reliance and forbearance hang in there thirty years if the man says hang in there we're going to take all along that the value of the sale was the three met members running the company and unless they were locked up for a goddess was not of interest in the company because they're going to run it and they soon learned after the sale that regardless it's just part of their culture they don't have