summary judgment in favor of our three composites and dismissing the counter claim for unpaid sales commissions and for violation of begin the end a sales commission act for the case turns on whether there is a genuine issue of material fact as to whether there was an enforceable agreement between the parties and we believe clearly there is a genuine issue of material fact so in this case both the parties acted over the course of approximately five years as though there was a binding and enforceable agreement i'm going to put words in their mouth you boxed yourself into a corner by saying that the only source of any agreement was this non disclosure agreement and then they zeroed in on the language in paragraph twelve saying the parties will attempt to develop an agreement so if they're right i mean that's not the language of agreement that's the language of we'd like to negotiate with each other but i'd like you to address your own  approach to this litigation and why we should take a broader view in your view ok so to address your st point we believe that the agreements that they in fact did enter into on the commission  really quite a few things on disclosures the non solicitations there was a lot in there right i would agree with that so you've got to go you've got an agreement but you're saying that the subsequent agreements on the commissions were in essence part of the larger agreement yes so and there's really was not never any dispute that the parties agreed upon the commission rates on a job by job basis as required by the contract in paragraph fifteen of the complaint for declar ry judgment filed by the by are three when they had initiated this case they specifically allege in paragraph fifteen that the parties agreed on a job by job basis as to the commission rates and we admitted that so as stipulated in the pleadings very early on that the defect and the non disclosure agreement as to the payment of commissions was fixed the parties stipulated to that there was never an issue in the case as to whether the parties agreed to the commission rates as a matter of fact a major part of the motion for summary judgment by our three was that mark laden had the authority to change the commission rates from what was agreed upon three percent for aquatic and five percent for janesville in private or and just just to clarify that out or nail it down this appeal i understand is only about these particular named accounts  so when this case was originally filed what the issues were and again in the declaratory judgment count or claim contract of complaint there was never any claim or requests that the the court find that the agreement was unenforceable if you look at the wherefore clause and count one of the complaint it basically states that they're asking the court to find that the agreement is a valid enforceable contract thank you so they were never disputing that the contract was valid and enforceable what the case really was about and even in count two when they talk about implied contract what they're asking the court to do is find that even if there was an implied contract they don't have to pay any more sales commissions so the real issue in the case of the two issues and two key issues in the case number one are is there any liability of our three composites to continue to pay sales commissions after they terminate the contract and that vote that turns on paragraph twelve dollars of the non disclosure agreement which basically requires them to pay commissions on any correct for about a year in change they venture they stopped that for some period of time correct almost a year and so their big argument is we shouldn't have to pay sales commissions anymore and basically what the position that they were taking was that even though aquatic which is the largest account keep sort of the same parts over and over again they're saying each new purchase order that comes in that's a new job and we have to negotiate the commission rate on each new purchase order that comes in but the reality is those are extensions we know as are subs and faces the parts have been made for five years and are continuing to be made so so that's what they were trying to get out of with the responsibility of pay continuing commissions and the other big issue was we determined during discovery that they had lied about the sales numbers that on the try victor and janesville accounts what they did is they picked a sales number a commission number that they wanted to pay you know and there was this manipulation this doesn't this all flow from glidden dual role here though which you knew about both parties knew vied it and it was actually done as a favor to mr karr because he had nobody to knew that knew how to run  business and mr glidden had some experience and that he was actually a part of my client my client brought in all the business that got the company started and glidden was the only person who really know who knew how to run it so it was a favor to mr carver that that arrangement was ask you where did you most clearly disclose in the district court your theory that in essence that you had this in da agreement employees and that the subsequent agreements account briefs the complaint are kind of what complaint alleges violation of the non disclosure agreement their complaint allege that the parties agreed to the commissions on a job by job basis which we had made it too so that was a stipulated fact so performance indiana law says you can take the written agreement and you can supplement what the orla greyman entered into on the course of performance by the parties parties to make one complete agreement one of the key point about indiana law affectively what has happened in this case is that the district court allowed our three composites to violate the indiana sales commission act which is a statement of the public policy of the state of being the ana that you have to pay sales commissions in the event of a termination a sales representative within fifteen dollars days of the date those commissions are due and if there's a bad faith failure to pay then you violated the indiana sales commission at this record totally let him off the hook for that well that presumes and enforce agreement to pay conditions well under argument ignores the language of and da that says the parties will attempt to develop an agreement to pay commissions on a job by job basis it doesn't say the parties agree to pay commissions on a job by job basis with the five percent and so we'll attempt to develop an agreement that's an agreement to agree it is until they actually agreed upon the commissions on a job by job basis and actually what it says in the indiana sales commission act it says if there's commissions it would do as of the date of terminations and these are the underpaid commissions that they basically when they cheated about the sales numbers that's where the bulk of those dollars are there was never any dispute as to what the commission rate was and so at that point in time as were supported by independent purchase orders or documents of some type commission payments a paper missions for five years at the agreed upon commission rates and as a matter of fact that at the right in the documentation when say aquatics sent something for fabrication there must have been some documentation that well basically the way that worked they would send us the sales numbers and then we would take those sales numbers and send an invoice based upon the broader agreement than just the language that appears in paragraph or part twelve of the nondisclosure it's based upon the agreement to pay commissions on the business that my client obtained for them which was what was  was complied with you're saying you're saying there's at least circumstantial evidence that there was such an agreement because it happened five years of experience you know that well that's an implied contract that's not an express countr document is an agreement to grant it but that's on an forcible under indiana law so take that out of the equation what's important is the course of conduct but that's just an implied contract theory she didn't advance until you e complaint that g m s filed it's a counter complaint what they filed was a counter complaint that was based entirely upon the non disclosure agreement but isn't it when we look at the the facts for example that they're talking about five years worth of payment it seems to me unless you're really practically common law zealot about the pleadings that they are that they're making the kind of argument that judge hamilton just referred to that there's the beginning in the written agreement obviously the integration costs can only cover what's happened up until that time and it's supplemented by oral agreements which themselves are carried into effect and you can see that by the course of conduct so there's two responses to that one with respect to the complaint it's been made very clear throughout this in g and s actually admitted this is in the record a document sixty five dollars page six that the m t a spoke o but if in fact you can look at the way they've litigated the case and they're bringing in all sorts of information about the course of feeling about the fact that the agreement is to pay a commission rate negotiate in a job by job basis that's different you know that's that's what they did that's what what happened and so that is part of the ultimate agreement that led to these six or seven accounts so so here's how they've litigated the case they responded to me answered with respect to two counts that are three had set forth one and how clearly did our three tell the district court that it was relying on the indiana doctrine about agreements to agree seems like that came well with respect to count one we were clear that we were seeking at that declaration and the n d a we had no further commissions with respect to exactly but that there are lots of ways a contract might not be enforceable the person who signed it might not have had authority to sign it my agency need to agree problem there might be a lack of consideration there so how clearly did you alert the district court at the beginning that you were making an argument based on the language attempt to paragraph twelve therefore we win the whole case we did not set forth that exact argument so no so i mean that's something that obviously has kind of emerged as the evidence and the theories have been tried out crying ask you  part right certain parts yes yeah ok and so i guess the trouble little one of the troubles that i have is your client went to the trouble of formally th and then continued to pay commissions under its terms for a year after terminations in essence complying with a jury might reasonably infer the a as supplemented by these account by account agreements what's on reasonable about that inference one any continuing obligation doesn't necessarily air any continued payment of commission doesn't necessarily mean it was paid pursu argument on which the nd district court decision largely rested which is that indiana law says that an agreement whose terms are partly written and partly oral is considered a wholly oral contract that's correct has no oral contract claim anywhere in this case and the deadline for amending pleadings to rely on an oral contract had long  a legal construct and strike you as a complaint for breach of contract or a contract required to specify whether the contractors written moral or mixed whether it's required to or not g m has committed itself to a position as to what contract it was relying upon and that was the end yeah and we asked the minutes covering and there's a purpose of discovery of course to ask if there are any other agreements that you're relying upon and indeed in response we asked if g s entered into any or into entered into an agreement with our three other than the india a please state whether the agreement was oral or written when you dream it was entered into in the place of making the agreement the duties of each party under the agreement the name address telephone number and job title of each person present at the time you claim it was entered into responded very clearly defined is not aware of any other agreements at this time but they see the reason that ships passing in the night is their concept of what the m t a itself encompasses is one that includes the service an awful lot of discovery that went on on both sides dealing with what that course of conduct was why didn't you just object that it was all irrelevant as to course of conduct etc yeah i don't know as far as would would be enforceable there may have been separate oral agreements that the parties entered into or the parties may have something you were just gifting them these commissions i guess for that you are not necessarily know they may have been being paid pursuant to oral agreement or may have been being paid  certified agreements but those were separate standalone agreements not the n b a and the only thing that g m s ever attempted to enforce here in this case is the n b a the interview is a standalone in the sense that there were continuing obligations shall survive terminations i'll give you another example of something that typically survives germination and that's an agreement to arbitrate it's not at all uncommon for contracts to end but to provide for some continuing obligation with respect to that paragraph twelve that would include obligations beyond just what's in twelve two hundred and twelve point one require g n s to assist in starting up new jobs and continuing obligations in the germination provision is clear that those me i think i understand your the procedural arguments you're making in essence on the theory that even if g m s had a viable theoretically viable claim they boxed themselves in or painted themselves into a corner somehow by not asserting it clearly enough ships passing in the night is a metaphor for what we're seeing here procedural substantively in the course of the party's transactions with each other is there a fact or set of facts that you see as decisively showing that g n asses theory of an n supplemented by account specific agreements is unsupportable the n d a in cases that you look at you can look at kind of well you can look you can you can look at you can look at the country of the case in those cases where you have subsequent or agreements indian law is clear that that doesn't see the original agreement so i that's that's not my question ok i mean asking whether there are facts in the party's relationship with each other over the five or six years in question their ads are inconsistent conclusively inconsistent so there's no need for a trial with a plane or with geniuses theory there were subsequent agreements whether they be oral or whether that be implied by the parties conduct and there are facts within the record that demonstrate that they were paying commission based upon those subsequent agreements that at some point after the n b a they did agree upon what commission would differentiate between those two theories other than the fact that they happened at a later time that they weren't entered into at the time the if you're going to in the n b a is a loser and those would be the facts but were clearly contemplated  i think you could argue that because the n b a contemplated only that the parties would attempt to agree upon something in the future because so thank you there never was any existing jobs obligation either i'm sorry if this was never an agreement i procedure lead demanded to be freely given when justice still requires so it's not a case where we were dilatory that this was an issue that somebody brought up before this was where up with st time the summary judgment motions we acted promptly to address that and by not allowing the amendment on an issue that came up at the very end of the case which would have changed anything would no additional discovery doesn't change what the legal briefs you wrote it would it would do  that but under the circumstances what happened in terms of interest of justice that allows the defendant or i'm sorry allows our three composites in this case to get off with violation of the indiana sales commission act and get off without