as this is a case that involved the interpretation of a written agreement between eighty and eighty alliance communications for the sale of business telephone services i spent a great deal of time in my opening brief addressing the facts putting in citations for the record i don't intend to go through all of those facts again what i would like to do is get to the heart of what the dispute was in this case and that was the interpretation of the word pick p c as related to this agreement the trial court below found that the word pick meant switch a customer service and therefore the interpret the agreement to say that alliance was only entitle to a commission on  extort of record page forty one which is page two of the written agreement paragraph two way in the agreement it says as false and by the way this is one of the description of services that alliances to provide eighteen team w are bound to do in order to earn our commission it says this falls contractor agrees to use its best efforts in selling a species product line to prospective customers including having each such to give the data to them in order for them to submit the sale to the local exchange carriers to switch the customer over in essence it was two two phases one we make the sale to the customer the customer authorizes the switch of their service in a telephonically recorded statement that's made with a third party berth occasion company hired by eighteen and thirty one spec third party verification is complete a record is sent to eighteen t information to alliance and eighteen team in order to submit the single for the actual switch of the customer's account you have to have all of the information that goes with that customer's account including the correct  we have nothing to do with switching the service over on the local exchange carriers level we had no contact with the local exchange carriers to further illustrate this this is a line of much value to a t and they got the customer well your honor that's that's the misconception because this is a unique contract this is in the telemarketing business it's authorization once the customer authorizes the switch for their service the customer doesn't have to do anything else nobody has to do service which is what this whole contract was about this was about selling local service to businesses t n t didn't have the ability to sell at that time those customers lines could not be switched because for example eighteen c global where you have the entirety of their system and now we can provide the local service but it was an important fact that there were along the lines nineteen thousand nine hundred sixteen local lines that were sold the undisputed testimony was the vast majority of those with the exception of a small number were associated with a business telephone number of the t m customer that didn't facts which and that the local service couldn't be provided by eighteen t v for reasons clearly beyond our control so he was banking on was that if we get a verified sale from these customers we are going to be able to switch over their local service to our whether there was an expectation of simferopol or otherwise our job was complete when we delivered a verified sale and successfully completed the pick authorization procedure by uploading our information to them and turning over the sale but other very important item looking at the vernacular here eighteen teeth once we have a third party verified sale and we deliver the information to them they don't know that these as accept these were accepted sales orders at that point that's an understated fact we have both the testimony and the documents that show the number of accepted orders well what eighteenth here saying at this juncture is that they want to be able to accept those under the terms of this agreement but then we jacked them because they couldn't provide the service for some reason and so i think i completely understand when you look at this face really doesn't seem to make sense what they never got the customer why should they have to pay for the serial number of wrong they did get the customer in many instances and number two that was what they agreed to do  authorization the third party verification report is me saying i authorized to switch my service and they were quote me so that i can't come back later and say why did you switch my service i never agreed to that i being utilized by a c c yes the actual switch was the criteria why would they not have used the word ports that come from the local exchange carriers the lack there was testimony from mr willett their systems once they have an answer to a correct i understand your why not but but the reason was they said you guys don't want to wait for the thirty or sixty days that it took to do the switch he wanted your payment when you had gone through these other two steps and they said fine we'll pay it on invoices that way but if it doesn't switch then we'll take it off the bills later and you guys said fine they say and your people seem to have played the game that way up until the time the thing called the park and your president even seeing is that that's the deal let's try to change it so it sounds like take authorisation possibly meant more than those first two steps and i'm glad the court raised that because i do recognize it is and this case where there's difficulty and that is one of them i would like to say first of all that if you look at the distinction in the early invoicing it was sent by alliance to eighteen teams there was a phraseology put in there for pick rejects the testimony of mr harwood who was the individual responsible for the invoicing indicated and the judge said yup i see how you played the game you see at the mr harwood said i wasn't playing the game that way yes we weren't playing the game on a level playing field at that point your honor when mr harwood testified he was the individual who was preparing those invoices he would know why he put that down secondly he didn't testify as to what the contract side or what he thought it said because he frankly said he didn't know his job was just to prepare the employees the third and most important when the large number of pick rejects will not pay your invoice so i had some small company they factored these sales through a third party they had already paid the money upfront thirty days prior to be so this invoice even even coming up that's a bunch of evidence that's the bunch of talk you've got the thing from is a mystery on the she thought yeah i'm sure you're sure that clearly in case we want to change we want to change the way of doing this from the way we've been doing it now you think we are but they were under stress and all this level with the district court level you had a chance to tell the district court all that the district judge didn't buy it i take it accepting orders mr yama sure was proposing an alternative means in order to keep the program alive he was not saying this is what the contract means and this is what we mean and so f doing wrong i'm looking a letter that looks like it went let's see from mason that's he's the one right that is correct your and it's dated june twenty seventh two thousand and one that's not dated september i apologize for that for the date difference you are but driving  it wasn't verified in the first place he's talking about ultimate truth reject is so broad like to change your commissioner will take a lower commission from vulnerable so it sounds like he's knowledge in that that's how they were playing the game at that time you for clear when clearly erroneous well actually if you say can be read both ways it can't be clearly erroneous to rate the other way can it no but i'm not i'm not arguing that that determination based on that letter was clearly  does not change the interpretation of the agreement at the upfront whatever the parties did after the fact and what it was by economic or us or otherwise they did that did not dictate what the contract instructed to write the letter i believe was his testimony and the question i thought that was posed to me was whether or not there was ever an objection stated and that and it was and it was stated at that time we don't believe we're responsible for these backs b there's nothing in the agreement that says you can charges back and see we've already paid the money out of our cost on hers and we're out of business if you charge back for all these how do we work it out and the result was well we're going to charge you back for them anyway or you're not going to get paid and what will allow you to do a stretch it out over the course of the balance of the contract and at that juncture alliance in fact accepted that and try to go on with the program that is what happen morning my name is philip eskenazi i represent the tele eighteen t corps in following up on a question that you just asked about whether there was a protest letter the record is clear that throughout the life of the party's contractual relationship up until the first day of litigation they never contested a tip that a line must switch for them to earn the commission what they said in that letter of may two thousand and one was wait a second we understand  do not have the right to reverse commissions then you read that sentence out of the contract because what else could it mean if the payment does not waive your right to later reject it how else could you later reject something that you've already paid so quote plaintiff's produced no evidence whatsoever at trial service it or implicit coercion by defendant so i think that should put that issue at res fifty one and there is two conditions set for for them to earn a commission third party verification and quote the customer has successfully been processed through authorization procedures page forty nine of the supplemental excerpts of record and they say quote this is their opposition to emotional and the parties do not dispute that quote pick authorization procedures refers to a customer switching services to defend and certainly that was an admission that the line must which otherwise why would you argue with lying that you never agreed to it and for whatever reason during trial they came up with a new tact which they advance in this appeal and that is no in fact this is consistent third party verification and the second phrase merely means that eighteen thousand needs to accept the orders from the telemarketing company i submit that is not what this phrase says on its face no testify at trial she testified on equivocally that that phrase amount that the line must which it was a commission if the line doesn't switch there's no sale no sale no commission they were looking to buy customers we had an industry expert testified she also they use pick authorization the any an authorization is not capitalized so it's not even clear from the face of the document whether the two provisions are talking about the same thing and then if you read paragraph two eric i submit that that does not say on its face authorization so on its face it means something more than eighteen teams procedures and then as far as the eighteen teams procedures we don't even know what that means on its face that certainly could mean a lot more than simply accepting orders from the telemarketer types of lines that were being sold here a long distance of something called the lab which is like regional halls and local and they were to get paid commission thirty five dollars for each of these lines and the standard was the same for all three there is no distinction and they submitted orders for all three lines and they were paid commissions for all three types of wines all three types of lines were rejected in many instances for a number of reasons so i know it's not true they'll just  people are scrupulous people can switch your phone line so now it's set up that we all have the right to call our local exchange company and put a block on our calls that means unless i personally or you personally call and remove that block even if another phone  like eighteen t says i have missed reston ozzy's authorization to change his line and it was third party verified and the local exchange company will run its or through its records it will reject it and it'll send back to eighteen t it's in the record that there's about a thousand different reasons that is certainly want i think that's actually the most prevailing one there could be another one as they just noted for local lines maybe for whatever reason that the local phone company doesn't operate you can't have that carrier on a certain street i know that was one of the things that the experts testified at trial the phone lines and might be a rural area it's just not set up for a lot of people might get tired pushing says that they get paid a commission based on third party verification and eighteen t s acceptance of the orders and i submit that is not clear on its face and more importantly that is not supported by any of the experience of cabinets and a magi let's remember they moved for summary judgment and then moving for summary judgment they made the same will actually make this argument they made a different argument that the contract was unambiguous on its face and that they were supposed to get paid based just on third party verification and the district judge sa testimony and witnesses reviewed all the exhibits made factual findings weighed credibility and concluded that the parties intended and agreed as evidenced by their subsequent course of conduct that appellant would only receive commissions for line down and they actually ramped up significantly switch eighteen to have the right to charge back and there was just a representation a that somehow the paper rejects referred to eighteen is rejected on the front end and there was a stalemate the mr harwood testified would submit to eighteen all of the lines which they believe were third party verified then he would run its own internal processes and determine which of those it would accept and the reason being that say they got a number one one one one one one us i'm comfortable so living on the record at this point unless you're honest any questions for me thank you thank you reasons include for example out of local service footprint which was twenty two percent of what was rejected meaning it's out of the footprint that eighteen t could service there was customer changing business plans customer decided not to accept service these are the reasons they're set for your page ninety nine through one hundred the trial court noted these were al completely i'm associated with alliance we have no control over that i'm interested when counsel stands up and says that i stipulated to a contrary interpretation i never saw stipulated i never would have so stipulated in this case would have gone to trial the opposition to a most anime that was filed with the court eight months before we actually got out the door to go to trial doesn't say that pick authorisation procedures means switched it says we first too and if you look in black's law dictionary black's law dictionary some my problem here is that the court below never made a finding of ambiguity the quote didn't say this contract was ambiguous and i don't know what it says the court said at first blush it appears to be ambiguous it analyzed the for primary interest change carrier i'm sorry lastly if that was indeed true how was it that alliance was to be paid for local lines when every witness of the trial specifically testified local lines do not go through a pick process they don't go through a process if they don't go through thick grass to ask how can successful completion of pig authorization procedures by recovery for those who don't go through the process and that was nineteen thousand nine hundred sixteen lines that was six hundred ninety thousand dollars to the small company but my closing remark is this your honest one to what a small company like alliance enters into a contract with a larger agreement which by the way they drafted and we signed and now we're being denied the contracts will benefit that we agreed to i would respectfully ask this court to reverse the trial court's decision below on the interpretation of the agreement