rose in two different ways first arising from a joint venture and the second arising from a relation of trust and confidence now according to the jury instructions that were submitted on that particular points with particular with respect to the joint venture aspect to do jury duty the plaintiff was required to prove five essential elements of that point two of which are at issue on this appeal one whether the point of prove that there was the riemann to form a joint venture and secondly whether the point of prove structured those those five essential elements that is correct in the jury found improve the jury didn't find them proved in our point on our corrected word motion in the judgment notwithstanding the verdict motion was that there was no proof with respect to those two essential elements of it's point in particular with regard to for example the requirement that it prove that there was an agreement to form the joint venture we know there was no written agreement we know from the cases in this court that in order to ever discuss the financial terms of their relationship for the contract issue this three zero five contract it's also undisputed in this case that the only offer that was made to perform that contract that was made by my clients was actually rejected by the point so when those are the facts in the record where there was no offer that was ever except that there was no even discussion of the financial terms  evidence that drifts these points that you as you said the jury of for your honor to be honest with you i don't believe you did it's our position  case on illinois required the proof of those essential elements of the plane we had filed a motion to dismiss the fiduciary duty plain because they had not alleged those two elements of his claim but she did not which we had just lost on the motion to dismiss and so they just realize that claim in the thirty minute complaint that mean that some allegations in the light but we have just lost the motion to dismiss on those specific elements claiming store but you were there part i was there i made the hour and the argument that we made was on the directed verdict is similar to the upper group i'm arguing now they never alleged it and they never broke and now and that's with respect to this formation of an agreement formed a joint venture that's one of the elements that the other one was they never proved that they had any joint control or management of this joint venture another essential element as required by the jury instruction the only possibility is to take a look at the one instance in which they work together and the otu contract and as far as that is concerned it's clear from the facts in this case that my clients for the general contractor of the of that particular project they made verdict the burden that you face they have a set aside a jury verdict this is i think the highest that there is of law where essentially there is that the no evidence or no reasonable jury can possibly have on appeal is scouring this record to see what is there any other this year already exactly in response to your question where is the evidence to prove agreement to form a joint venture where is the evidence to prove joint control or management we said in our brief are already there isn't any in their response brief they don't cite so we believe that that was a a waiver if you will if not a concession but there are no matter how high standard it is there are no facts in this r particular theory that specifically requires the plaintiff to prove number one among other things number one that he placed the trust and confidence in the balance and secondly and most importantly as this court held in to wit that the defendant actually accepted that trust and confidence and the jury instruction also said they have to prove that by clear and convincing evidence so once again as we've said in our appeal you scour the record then to see what is the evidence  it is the highest duty imposed by loss of the court requires there has to be some facts to show that the defendants accepted the trust when the defendants accepted the pas is that proof that the defendants accepted this i  the defendant had believed who had made the affirmative defense had not established the elements necessary for that legal defense were saying the same thing in this case whether they were the allegations of the complaint or the facts in the record they do not constitute a sufficient basis for finding that the element of the claim was met and so that here we take a look to see what was it that the defendants did to actually accept these but you surely responsibilities to that of the plaintiff when they're negotiating over what the financial terms are going and that's why i think do it is so significant because it's a little it's a commercial of hard case unlike a typical fiduciary duty case where keep in mind under the under this the decisions of this court and under the jury instructions they had to prove that by clear and convincing evidence and so what we're claiming is that it is absolutely the case given the facts of this case that damages your we've seen in the illinois case law that there has to be some extreme conduct some malicious or evil or outrageous conduct to warrant human damages in this case we also saw that the only conduct the judge traverse found could warn punitive damages was focused on the possession of the use of these pots in may of two thousand and three or this is two weeks before this contract is supposed to that is supposed to start which was to go out on the east coast and go to five or six different locations and spray all of these trees and so the question at that point in time then is whether or not there was anything done in may of zero three that would warrant punitive damages well i think th issue of those of what happened in may of zero three is significant because it undercuts i think the whole notion of punitive damages and frankly explains a lot about what this case about because this issue of how the how the defendants got the use of those  i think the single most important fact in this case and it is an undisputed fact is that neither the defendants nor the plaintiffs ever had the right to own those pots those pots were owned by a they prepared that letter they prepared it in such a way to make sure that they ultimately control how the parts were used because they wanted and they need the news on that s t s contract that was the whole purpose of the  they believe that there conceding in that footnote that ultimately the decision was her cons as to who had the right to use those odds so here what we find they have all three now that the contract is about to begin the plaintiff is trying to prevent the defendants from this is a complicated factual situation but it's seems to be trying to grasp what's happened here that the position of the plaintiffs ones that they have this contract agreement with the president's during two thousand and two and everyone was happy with it and made money and want to do it again and let's do the gerund you know we're in this together let's do it again and i think everyone else was saying to think that this was going to be a continuation for the two thousand and three two thousand and five contract and that they were blindsided when suddenly the president said no we want ten percent more i guess expenses that  defendants my clients they wanted to work with the point they proved that they wanted to work with the plank of the issues on what terms and so the ultimate issue here is was there and deal was there remain with respect to what those terms were going to be on the mr miller thank you your honor may have please the court the council suffice it to say we have profound disagreements with the counsel for the defendants i'd like to take as a flying put all of his rope lines trust faith and confidence in the shepherds with whom they had dealt under the two thousand and two contract to make the be keep well starting out that we're too busy to give you the pods back when they were requesting them and you would have come in and got them let us keep the pods we're all in this together we enjoy flaking w products they are saying that the pods could be used only for the purposes of the house to yes contract the fact that they have the pods and the fact that pontiac flying was relying upon them to bid the contract for their mutual benefit meant the pontiac flying was unable to bid the contract and that goes into our process appealed to  placing trust and confidence in them how can they conceivably argue that there was no agreement when they got the pods and they do not your intent to make an agreement they intend to strain is head pontiac flying services well yeah ok the twenty percent instead of ten percent ministry of expenses is ok we have an agreement that we no issue with that  two thousand and two contract with the rac no contrition relationship before two thousand and two signing every trouble understanding this i'm going pattern of conduct idea can really be based upon one year to concealment but when you have silence which is that it would be done on any other terms that's my trouble understanding the justification when they've never dealt with this before they had this one contractual experience the shipper say let's do it again and i'm just then you were focusing on the conduct they didn't give the pod back at the end of the season because they intended to keep possession of the parts they didn't give them fact when he asked for them and when we got to rick reed peterson goes down to i believe it was mattoon to take them back because we was simply a pilot read tells them that he had talked to the shepherds and they told him and this is their children peterson didn't trust them again and i'm getting to the nub of that one because i'm sure that we all have the experience of being a little leery of someone until they make though this at that point being reassured and this is an active concealment on their part because why in the world would they tell leak that who was not going to be dynamic engineering the pods not to give them to peterson i was something which so far they have the intention at that point in time of using a force majeure on peterson by taking law on the creation of sheer absolutely absolutely because you can be suspicious but at the same time if someone you know is making the representations to you that everything trust and confidence in them to act on your behalf and here acting on their behalf was putting our trust in you to make this bid to get the contract which we can two thousand to tell them dad you have to prove joint control or management of their let's joint venture and they raise their their brief and they say you didn't address it in your response are they right that you didn't address that provided two pilots and three members of the ground crew which he supervised and he proceeded to maintain the a put up point into two thousand and three up course they couldn't have controlled because it was never the intention of the shippers to do business with them to begin with so there never was an ongoing relationship because of the sheer for breach what was the joint venture from went away the joint venture was an ongoing joint venture until the turn changed from two thousand to under the same circumstances where i peterson would be providing the same a put mint being  forth the cases in our preferred the show a wide variety of thirty relationships this is not where you've got two partners going down the road each of them vested with equal control over the nothing more certain than a partnership going with them because our management of the joint venture is not an element not as two aspects of it you don't have to be equal partners but say equal in the intended it to be a joint venture so they took the reliance on the part of quality x y and the private pontiac line of the opportunity to compete in the opportunity to same terms from two thousand and two but no didn't venture with playing well first of all the more exact same terms because we don't have any terms between any written agreement or implied agreement between the defendants and and the and the plaintiff there is no such joint venture agreement there was a written agreement between the defendants and harold miller the defense and harold miller went way back together flying together working together they worked on the s t s contract and developing that s t s contract together the mere fact that the unless the other partners agree to it and if i have a law firm and and i have three partners and one of them sells out and to somebody i don't want to be my partner a lot of sorrento it doesn't work that way illinois's far as i'm as far as i understand it and so you don't just step into somebody's shoes and try to acquire someone's experience by paying the money and so you know to in order for there to be a joint venture illegal had to prove some joint control or management and there are no facts here it's exactly as justice is as you describe it ah it's clear from the record of the play that did not have any of those management responsibilities with respect to and clearly not with respect to a real five you know we talk a little bit about whether there was an agreement here and it's interesting that just so happens that one of the essential elements of the future of beauty claims that they have to prove some form of agreement but we have to step back for a moment and keep in mind that this case has been going on for seven years and not once during that entire period of time has this of ledged a breach of contract action and i submit that the reason for that is because the plaintiff knew all along that those assurances in the form of well let's continue to work together that were done in november of zero two never bush sufficient for purposes of making it and then forcible promise such that the defendants could somehow be held to any particular tended to perform under any set any any terms but the oath three over five contra with respect to the most significant term the term that separated these two parties the term effect of how much the plaintiff was going to be paid the crux of the cases the plaintiff didn't get paid what it wanted to be why was that because the parties never reached an agreement as to what those financial term for going to be just as you made a point here that has not really been addressed too much in this case and that is if the plaintiff keeps saying well i did have a reason to believe this or i didn't have a reason to believe it was anything different you know there's an undercurrent here or the plaintiff has a responsibility to it's a commercial part of this commercial transaction why doesn't the plaintiff know how much it's going to be paid and why hasn't the plaintiff ever negotiated the term it was so concerned about in this particular case that never happened up one million dollars where the work in exchange for a seven year long lawsuit and never of budget breach of contract because he never had a contract and without a act you're not entitled to be paid anything and so we have all these theories about the p but it's all answered by that one fact her con on the pots neither of these two parties did it was her kinds of decisions to let the defendants own the pods and that was not sufficient to give rise to any punitive damages in this case your hono finally we've heard a lot about my clients i can now share for in the type of conduct and gauge in this case which i think are very unfortunate charges against their character it's certainly different than what i understand their character to be having lived with them for a month during this trial but i have to say that my concern about this case is not solely with my clients because i believe that this case as a presently stands is a bad precedent in illinois