if it please the court as i said i represent mr barry k who is the plaintiff a well just briefly the should have been the perfect marriage the marriage between mr k and  packaging in business mr kay was one of the top salesman most iconic figures in the paper products industry from one nine hundred fifty eight approximately to about nine hundred ninety eight just before wise why many others he no longer really could or wanted to run his own business he was looking for a business like his that would enable him to service and sell to his main customers and have others within his new employment to help him with all of the other customers that he was going to bring with him for prolix it was also a perfect match they were a young up and coming company they were successful they had good facilities lots of  salespeople but they were mostly still a small kind of company mr k would double their sales revenues if you brought all this customers with them and provide a kind of a lobster that they didn't have they would be able to say now in the business community that jewel and walgreens and companies like that were clients of theirs they entered into an employment agreement a written employment agreement by which mr kay was to be paid for a period of five years commissions on all prolix to mr k s previous customers that he was going to bring with him from his prior business he did work there he began to work there everything went slide all the way through yet he did not let it slide the testimony is clear your honor that he kept a three months into his employment he said why am i not being paid  on on all of my former customers when the sales are made by your sales people mr jack a boss who is the c e o of the company said should look into it she came back and said we're not plan that's all there was to it was the clear testimony and it was on a post he didn't agree to it he didn't think it was a correct and proper but he felt he had no other choice they simply refused to pay him on those sales and at the end of his employment he sued and for those lost commissions over that period of time and the result of the truck of the trial which lasted several days over several months because of limited court time in front of judge michael it's judge b calculated that he took the total sales that we could prove through documentary evidence business records that we rock only got from another company they were not produced by tolex to us and he basically multiplied it was he took our chart that he asked for which was to multiply those sales by seven percent personally to his former customers those he was paid on most importantly it did not include thirty thirty one of the sixteen months that mr k worked for prolix he only allowed us to prove damages didn't the exact number but it's i think it's might be thirteen from correct six hundred thirteen which contains our estimated sales for the missing years now that we did respond after the judge's march or january ruling i believe when he said i want you to compute for me what the number should be at seven percent and at his request we did that and so that's also part of the court record so it was the sales that he let us put into evidence times the seven percent commission right based on the sales for twenty six months made by prolix salespeople  make those sales we did say earlier so the first seven percent come from a very unusual situation in the forty five years i've been practicing law around here it's the first time i've ever seen something quite like this even this is you get a gift for thier it and i don't a sincerely held and just as frequently stated at the trial that the commission rate on all sales to former k customers was supposed to be seven percent and the judge saying that odd five which clearly calls for a seven percent commission for sales derived from employee now they could have said seven percent on sale was specifically made by the employee he didn't say that he said they are rather the recital says sales a very big thing sales derived by employees which suggests to me that that recital meant as sales that had anything to do with mr k and his customers and that bruns very well if you look at seven a and seven b of the employment agreement because seven a says mr k is supposed to get a five percent rate of commission that's his basic rate of sales commission and then in seven b it rather than the five in two you know her position was we'll just give you the cell phone we don't have the worry of that's why she was going to pay that too and even i believe it's you said your honor we're not complain about barry's direct sales the fifth r refers to various direct sales of sales he makes himself and which he gets five percent plus two percent we're not complain about that this case so again you were complaining about the five percent no i didn't and then i understood the testimony she was she just said they c flated the five the two and that was her defense as the say why they didn't know the extra two now that he defendant's brief says that's what she said but that is not what she said she never said anything about that she said i was seven percent in my opinion it was the weight of commissions that mr k was supposed to get out as sales to his customers her testimony was that the biggest dispute was who are her customers yes they say that in a brief but there isn't a citation to testimony that says your quote she said seven percent is what he's supposed to be paid on all and all commissions that sales that's the way i want it to be i don't want to have to fool around with two percent for here seven percent for here five percent for here i want seven percent on all sales this is an issue of law i think it's a tough one i grant you that it's it's very difficult i think the judge bar to it so in the end he heard everybody you know to don't think he specifically said it was an ambiguity around or he but to me that's the way he ruled on it he was trying to determine the meaning of the contract doesn't mean that two percent or doesn't mean seven percent for for these one third because it was too much of an accounting difficult yes way she took the five in the two and then she said we just wanted to get that cheese that's different what you just said and that's what i i was saying that the testimony that i read what the defendant is saying is they paid you everything you were owed because they added the five in the two and it is figured that was it they they overpaid and felt that they had given you what was inside now you may disagree with that but that doesn't say she never testify that you wrote seven percent and everything she did if you what she did she did what she said was five plus two it was too difficult for the accounting we lump them together i think if you look at the citation i'm sorry i think if you look at the citation in my brief as to her testimony her testimony is very clear that the proper rate of commission was seven percent i only ask can't come up with it right here in this moment but i think if you if you will i could be wrong on it but i believe very very strongly that if you look at the testimony her testimony that i cite in my opening brief on this issue she says differences of trust laurie i'm going to go with two solution yes to some extent and and also he he mentioned in his ruling of behavior by prolix in paying seven percent and he felt the pack substantiated his his reading of the of the document of the employment agreement it everybody argue before him during the course of this want litigation that th rate of commission was in front of the judge both during the trial and it earlier stages of the trial or of the litigation as i recall there were times when the other one of the defendant said one entitle to anything there were times when they supported you lawyers commissar that we were to get two percent etc when it went all over the map and i think in the end there's some issue of fact that should not be overturned but i think it's largely an issue of law so i think it's a little of both but i think the judge reached and in the case the judge reached in the end the right decision i think it's the way that best explains this contract if you look at the recital five and a paragraph seven a i'm going to take a minute or two to deal with the issue of the meeting of the minds i think that's a skip over that i think it's without merit cases cited or oral agreements this was a written agreement the meeting of the minds is found in customers listed on exhibit a strongly suggests that an exhibit already existed it was to determine which customers mr k would be paid commissions on the overwhelming testimony was that exhibit a which is by the way essentially this was the custom a master listing from mr case former business there were no other lists ever that list was at the closing that this was provided to the question  a was a customer a master list and that the appropriate rate of commission was seven percent i'm the judge in my opinion went on to make two serious mistakes and errors of law the first one was that he did not he allowed us to make an offer of proof but he did not allow us to put into evidence the best evidence that we had available this is not a best evidence case but the best evidence that we had a favorable which was mr k s testimony about thirty four months for which we did not have documents now there's a lot of talk in both of my briefs about documents or their documents are strewn on the floor documents that existed but were not produced by  and i think the testimony is pretty strong that there were documents that should have been produced at once but the judge does not pay any attention to that issue in his ruling what he says is there were no documents available to either party for those years and i was the only hard number for sales made to former k customers listed in the exhibit area for the years two thousand and two and three he gets the years wrong here but he goes on and says for the two thousand to two months of sec sales figures for the remaining years were not available to either party there should be no sanction on either side he says and then he goes on to say the reason that he's not going to allow the testing has nothing to do with that and it shouldn't even if their work one hundred thousand pieces of paper strewn on the ground that does not mean that we should not be able to put into evidence credible testimony and the judge does not talk at all about the issue of there being any documents on the floor from his point of view there were no documents and even if there were a week late when he said act i think you're using a loose term what are you talking about rock the records of the hundred thousand pieces i don't know it was  so that is documents with documents or you talk well you're fairly talking to something else and i think that the judge is saying that there weren't any summaries like the summaries that were found the effect that the documents rather miss were available you can avail himself to them and you're talking about the summer so let's with he made sure we know what you're talking in the middle of the trial he talked about it there was a lot of discussion about the documents the pieces of paper he that were on the floor in the cold warehouse which we had the opportunity to look at but we did not happy economic ability to audit and that was in our testimony them if we don't know what he meant well i think the words are obvious there were no sales figures available to either party so i think what he was saying is there was nothing worthwhile that we could look at that could have helped us i think that's what he means but let's say  say for the moment that we could have looked at those documents and could have done something with them if we talk about that then i have to get into the issue of  documents that were not produced to us the sales figures that were not produced to us in the testimony is clear mr jacobites he says they were there they were in her file cabinets they were in her room office except that mr kay says that they were not shown to him or me at that time and that's clear and i'm contradicted nobody ever showed us the sales figures in the summary forms and we know they were produced because ponselle had some of them and they were never given to us but everything this is what they said they had missiles what they gave us and that's why we we subpoenaed and didn't get them that way either documents from bonzo and other places we just got lucky that they say that a officer apt bansal i had them for his own safe keeping those two hears that's the only way we got him and it happened that mr kay worked there and was talking to him so we got those two years that's the only way we got those it was sleight of hand so the reason we didn't get them that he said that with any testimony that they had  for all the years i don't remember there was testimony but i can tell you the truth is they only have them for the last two years right they didn't care about that's right so was living so why do we why do you assume then that they existed for the prayer because she said strewn on the floor in the warehouse but in the end i don't think it matters i really don't we don't have to use those pieces of paper that are strewn and the warehouse mr case testimony was not speculative he knew more about this than anybody in the world with the possible exception of eva this wasn't speculative we had we want looking he wasn't talking about what's going to happen five years from now and speculating on future profits and future sales  the sales he testified he knew with the sales one thousand nine hundred ninety eight in part of two thousand and we definitely knew what they were in two thousand two hundred three because we had the documents for that the psni summary documents that we could show the sales figures that happened from two thousand to two thousand to get all these people just go right and then come back in two thousand and two of course not mr kay was there he was selling his ass off pardon my language and he didn't get the commissions for all those sales how is that fair thirty three months and he testified that as to his own customers he knew exactly in those missing years what they once he sold directly he moved from being there every day a sensually what was happening with the customers that were being serviced by rolex they didn't just go away the number of shopping bags that a grocery store needs from year to year and month to month doesn't change very much we had specific records for two thousand and two and two thousand and three night and one nine hundred ninety eight and a little bit of two thousand the rest of it was barely case saying in the end based on all my knowledge all were and had to be about the same as they were in the years that we knew about there were surrounded the spheres those companies didn't go away they didn't say he didn't sell to him polish didn't sell to him in two thousand and in two thousand two hundred three but not in two thousand and one summon him what we get is a horrible miscarriage of justice thirty three months there were he wrote there and if the judge was right in his other rulings that's it we lost for about four hundred dollars and commissions and polish gets a four hundred thousand dollar windfall we know he was there we know we sold we know how much is a essentially what his sales were to it to the customers that he sold to so this this testimony was not speculative sure would have been nice if we have the summary computer printouts the colics didn't give to us that would've made it a lot easier but they didn't and i don't think that we're limited i don't see any reason rod we had to even if we could which mr kay testified and nobody objected to read that that was too costly to organize all those slips of paper related to nothing sitting on the white house floor we didn't have to use them and his would would you use his testimony just as yes it was very credible nobody in the world know more about this than he and practice i don't think even even jack for me that's absolutely right but he he had contact with a lot of them there's just so many hours in the day you know that's why he went to products because they had more sales people that could handle all of his other customers that previously ever salesman who worked for him want to sell look he should get something for those thirty four months he should not be prohibited from giving credible testimony average testimony the amounts of money we went to one or two and we had a lot of trouble even getting old these were don't forget this case even in discovery was only rolling in about two thousand seven eight nine and by that time most of these companies should write him a letter and i would say we don't have them anymore so in fact in reality the answer is you know there were no such documents that we could have presented and in any case this is good testimony this isn't the best evidence case your honor we're not trying to prove what a document says i want to document it looks like this is very good testimony knowledgeable testimony it's completely unfair that mr k should not get the commissions that were withheld from him on his customers for two and a half to three quarters years should prove well i would there's one other issue if i might the wage payment act i think the judge made a significant error the checked that's the legislature has a very strong policy here they don't want companies with holding employees wages with you for no good reason you sought to amend it after the judge ruled in the liability  both the seventy four and two thousand eleven act the two thousand and seven act merely amends the one nine hundred seventy four act it prohibits the same behavior that is withholding employees are independent contractors wages or commissions or whatever after they've left the company and the legislature is pretty serious about that and this would have been for a counter that happened seven years earlier yes so you want that the law was and the act was amended seven years after it's not true your honor it's just not true there was no proof that needed to be put in it was in there that were an employee if you ask defendant's counsel hill agree that where we were an employee and that if any act applied it was the way to act so there was no the and the cases we've cited cases in our brain that are very clear in saying that we should be allowed to amend the complaint to conform to the proofs even sometimes when there's a little bit of practice under the cases i'm willing to say when there's no prejudice it's clear that we should be allowed to a man and to comply with the law and the proofs in the case whether it's the two thousand and eleven act or the or the one nine hundred seventy four act fairly close case i think that the two thousand and eleven at should apply giving us attorneys fees and two percent a month but if this court decides that that's not proper we should at least be able to obtain the penalties under the hundred seventy four act which did not provide for attorneys fees but did provide for a one percent penalty per day up to twice the amount of ranges other were withheld and that that made starts within says reasonable attorneys face only two percent a month is forever yes and there's a good public policy reason because most of the time it's difficult for the employee to sue for the what's been withheld because of the cases cited in the board of education case i think its side but county board of education first the state board of education i believe it's cited first on page thirty seven the case law says that in my opinion it's a close question the case law says that in cases like this where the behavior is not amended so it's not like an ex post facto law but the only thing that's amended is the remedy for the disapprove behavior that it is it's reasonable to apply such changes in the remedies retrospect or of retroactively in this case that would mean  attorneys fees and two percent per month but if not the seventy four act existed it would be the problem is the difference here is that if you had brought a claim under this of it for a prior  it after the trial after the liability ruling then you're asking the bring the claim as he said it and i'm not sure as i recall if there was any reason that you gave the motion to that it matters the amendment conformed to the proofs that we requested under the wage act and required no new evidence the evidence was in there it did not in spite of what the judge said it did not require any that if some earlier time we did move to amend under the wage act but maybe six years after we started the litigation it would have been allowed and besides that i don't think this is something to take into account the other writers on the other side are very comp smart attorneys and by i missed it probably they didn't and or at least there was something out there that could escalate the cost of this case to them that's the  first of all i want to apologize to the court into counsel because i did note there was an inaccuracy in the brief that we filed to the court i believe in part three page twenty nine of my original filing we stated that no time did mr kay ever complain about the nineteen that of the two percent commission in fact when i went back and reviewed this and in fact he did have the one complaint i believe was sometime about three months after and he sent a letter as to that effect so i apologize to the court into counsel for that inaccuracy in my brief that being said i think the first thing we need to do is step back a little bit because i think there are really two issues before the court today that are critical issues one is are in fact a contract between the parties as to this overwrite payment and then to what are the terms of that contract but we have to put that in the context of what was happening and if we look at the briefs that the plaintiff has filed in this matter as well as his statements before the court when he was just here a few minutes ago he was talking about this being the perfect marriage between between mr kay and prolix and it ended that he was bringing a lot of business to the table and this was going to be a wonderful range from that and what counsel neglected to tell the court and is nowhere to be found in his brief but at the time of the acquisition mr k s prior business was bankrupt he had operated aberrated a company called vic a group inc that company was in substantial debt it was already losing customers to prolix so they were already getting his business he went ahead and performed it not to do with the issue for benefit of creditors to customers that he was servicing that's five percent if those customers were part of the customers that he'd brought to the table that he was currently serving at the time that his business went and then he got a two percent override has to those customers that has laid out very clearly in paragraph seven and seven b so it's not just the customers that were on exhibit a he's servicing customers on a growing forward basis after this transaction as to the customers that he's personally serving he's going to get the five percent and if those customers were customers that were theoretically to have been listed on exhibit day customers that he brought to the business ok and that he brought over with him then he would get the two percent on top of that and i think with the testimony of mrs jack about he was it was all too confusing show she paid him seven percent which she didn't owe the agreement that she did commission on preludes customers that he was servicing after the assignment would benefit creditors that's where some of the confusion arises here it's not that he's servicing all his old customers but now we're getting into good yeah i don't have the benefit of being trial counsel here i'm merely the appellate counsel so i'm i'm stuck with reviewing the record chest as your honour's are so i have to look at what's in there that's really trying to figure out well what's going on here though is we've got that we've got transaction where his business a soul that has an assignment for benefit of creditors and everybody sitting at the table on this transaction the question is is there an exhibit a that's agreed upon and who are the be the customers that are identified exhibit day that's where the confusion arises and that's why i was given the background your honor i would but let's assume for sake of the area that the judge him the issue here was for the first question is is there an agreement as to what's going to be on exhibit day because plaintiffs arguing that it's every customer he ever serviced that there was a factual finding by the court the court that the issue was it was be on exhibit a that the that was the ambiguity and that's why the judge because there was nothing marked exhibit a so the judge had to have a factual the trial was to find out what the facts were and he believed ok mr kay that they didn't believe you constrained to come up with something because he felt it was important and we believe that's the essence of the error this is a case of where after an assignment for benefit of creditors you got a lot of documents sitting in the room when this closings occurring you've got all the  agreement documents between american national bank and mr kay because he was personally guaranteed for four hundred thousand dollars of funds to american national you know there's money to pay so he's selling his business to prolix in order to get the money to pay off  so you've got lawyers all over this room with documents all over this room and now one of these documents is also the employment agreement going forward so the question is going to be as you're sitting there on the right customers are we including twenty seven ok and i find after listening to all those the spiel i find it's mr k s exhibit three is exhibit a so rightly or wrongly dance with the judge exhibit three that's a fair question and you're saying he should have done they had to that there was never an exhibit a i'm saying there was never a meeting of the minds before you even get to the fact question as to who is going to be the so he made that determination of based on the evidence that's what i'm saying is exhibit a then he my only point your honor is that i believe is the essence of the air here he should have made determination as to what the content of that exhibit was to be to see if these parties were in agreement as to what a two percent override was going to be paid on is it every customer that take a group's earth for thirty years even though they're no longer servicing those customers and even though in the last six months before the assignment the benefit of creditors some of those customers had already shifted over to prolix and that's what this check about ski is testifying to she's saying wait a minute ryan resigning in agreement with a bankrupt that we're going to pay him a commission on customers we already have they have left his company and they've already joined our company raise on the other hand mr kay and even in paragraph eight of his complaint is stating i should be agree there is no the trial court does not have the right to create contract terms that are material terms where those terms do not exist so to answer your question and to be very blunt yes the judge should have pondered he should have said look we have a fundamental disagreement here as to who should be on exhibit a you think it's forty years a customer's and you're saying that it's only the ones that were brought to the time of the closing i find no evidence to establish what exhibit a rise and as a result it was the failure of you two parties when you sat down at this table to enter into an agreement there are lots of cases of a company sit down to finalize their transaction and because of the dispute as to some term everybody gets up from the table and walks away it's incumbent on those parties and the attorneys to either finalize that agreement and attach the correct documentation were to walk away and say we've got to come back another day but you don't walk away from the table in a sophisticated assignment for getting my money and she's saying you weren't entitled to anything else so the theory is too difficult to determine and she was paid the seven percent i thought i think she was getting seven percent on those customers he was servicing which is different from the right customers part one but it's more than that because counsel admitted at the trial and the plaintiff admitted at the trial that he was only entitled to two percent so the record is replete with judicial admissions that he's only intitled to two percent on the yes there were at the end of it left the table without an agreement a few months after he starts he writes a letter saying i'm not getting my daily thing and i get my two percent and there's a disagreement about that and what he brings it up and then so the jack about he's no longer had any control over the computer systems the software that creates these reports the council says he's seeking all that was said the bundle so only thing that the plaintiffs have left for excuse me that the  course of business it's summaries were prepared the only testimony in the record is that there were some summaries that had surface and those were received through a document production request to the buyer bunzl there is nothing in the record that says that the sell the prolix had summaries or ever created them in the ordinary course of business and importantly when this issue arose at the outset an order was entered which is part of the record beat at the trial rather that the parties would mutually share the cost of going back through the records that the warehouse of records and recreating these things and recreating summaries and the plaintiffs determined not to do that so not only is that a matter that they could have subpoenaed records if they had waited seven years to do it from b i can't imagine it but i don't know if guns are would have destroyed all the computer records within six months after buying the company but we don't know one way or the other what the plaintiffs did in terms of discovery but all that information was with bunzl the only thing the defendant retained according to the record were the individual the daily sales reports those were kept in the same method that they were kept in the ordinary course of business and a court order was entered that the parties could share the cost to recreate that so defendant plaintiff had every opportunity to come up with  precise number they just didn't want to do it so they did but i want to get back to the first issue was whether there's a meeting of the minds and i think we talked about that so then the second question is assuming that you agree with judge  there is a meeting of the minds and this is the proper exhibit a the next question is what are the terms of the contract to be decided is a matter of law and how much money should be paid that's why i've previously that there are judicial admissions replete throughout the record but there are only entitled to two percent of the overwrite and so on we know is there or do we have to send it back for him to calculate no and the basis for that is what we can say that we can take the exhibits are already here you can show the calculation in my brief as to what exhibit thirteen i have to look at the number i think the number comes out to one hundred six thousand dollars to two percent of the actual damages that they showed so if you multiply that by prolix prevented that i mean i understand the law all of you know the law if we prevented that in some fashion through either a destruction of records or a failure to turn them over in bad faith then clearly he can get into some projections as to what those damages are the law is very clear here that's not what happened here i mean prolix owed their business to bunzl and they sold them everything and those records go with the sale i don't know the reason council sat on this matter for year after year after year before sending over a document production requests and a motion to compel bunzl to turn over right even to go get copies of the computer records and ask for some kind of backup of the computers i mean that information this transfer it had nothing to do with any actions prolix plaintiff didn't file his suit in this case so after the sale so he made an opportunity for the five years that this contract was ongoing to come up and say wait a minute i should be getting this money and i'm going to go ahead and file my action now because i'm entitled to this one an ongoing basis he didn't do that he had a good deal with the plaintiff the defendants and he knew what he was getting money every month and commissions he waited until after the business was sold and only then did he bring action and i believe that the affirmative defenses should kick in at that point because that's ratchet you can't wait until the business a sold the records are gone and the and the defendants have no way now of reconstructing all this and only then misconstrued the board of education case because the board of education case is very clear in that case they did not allow a retroactive application of the statute but the board of education stands for his number one through the defendant have notice that it could be liable for attorney's fees if it didn't prevail in the ultimate litigation and in this case clearly defendant's head no now it's that they could be liable for attorney's fees because under any of the allegations in the complaint that had been fired by the plaintiffs there was no grounds to recover attorneys fees so when the statute was intended effective january first of two thousand and eleven that was the very first time that the that the defendant could be liable for fees and that was over seven years after the sale of the business and the close out of everything so a number one the board of it makes clear that that's the first point you look at and secondly the board of education case is clear that when a new law is enacted that court has to ask did the defendant have the opportunity to overweight it's a fact and if the defendant didn't have the opportunity to avoid the effect then you don't stick them with a retroactive application of that statute and that's what happened in the in the board of ed case so counsel's construction of the b i don't care whether you think your lab or not we have to get this over right now in order to minimize the damage ok so i mean now you put facts on the table which changed how an attorney that there's just there's no way that you completely change how you're going to approach this case to find legal counsel so i don't think it's fair to turn around four days after the effective date of the statute and say gee guess what now we're going to come in for legal fees statute in terms of what you have to prove in order to fall within that in order to get a penalty so i'm not i can't trust the court with that but i'm not sure it's so simple as to just say you know it's like prego it's all in there you know just move to the record you can find it  you don't have to have it in additional hearing i mean i am not prepared to make a statement one way or the other at this point if you're looking at think that the contract you know past the issue of meeting of the minds and now we're looking at the contract and trying to decide what it provides i'm not certain that anyone laid out to the court one way or the other whether the construction where you have a generic provision in a contract and you have a specific provision in the contract that in the next case the specific provision always controls over the generic provision is that rule construction minimally should have been applied by judge parker which especially given the confusion that's in this record and looking at the whereas cries that the talks about generic payments and then you get to the very specific section seventy and seventy which clear it for everything that mr kay sells the work that he does him self he gets his five percent and for everything that's often exhibit a customer that other prolix people sell he gets this two percent that is very specific and i believe under proper rules of construction without regard to anything else you've got a rule that he's only intitled to the two percent if you're going to find that that's part of the country that the exhibit a is is part of that contract and if the final sentence eyad comment with respect to construction of the contract is i believe there's another rule of construction that's very well known that if you're going to construe a contract you have to do it in such a fashion that you don't render some of the provisions in that contract meaningless by judge berkowitz ruling that it's going to be a flat seven percent even on every customer listed on exhibit a in effect that ruling rendered section seven be completely meaningless because if it's sort of no arguments really unique your honor because this is that and i've only been practicing thirty five years so i've got a few years that i need to practice longer but in my thirty five years of practice i have never seen a case where throughout the entire case counsel in his client argues that i get one thing i get two percent and then when the judge rules that a by the way i'm going to give you something else he completely flip flops and all his subsequent briefs and everything that he files and says wait a minute i get seven and if you know it if you look at what he attached even to his brief the caption says the two percent that my clients entitle to he didn't even get around to changing the caption on the exhibit to say the seven percent that the quote was a routing it's still request two percent now granted i mean i would as a young lawyer standing out in court and to page one said i remember the judge and i he was hammering on the other counsel and i was a very young lawyer and i thought i would add my two cents and as i spoke up the judge looked at me he said counsel when the judge is leaning in your favor shot up well i can understand if counsel adopts that position after the court has already entered seven percent i mean i guess i would change everything too but there is such a thing is called judicial a stop and i mean his position is fact question and i think you can turn around and say it's two percent of the damages that he was able to prove i got the precise number my brief i believe it's one hundred six thousand dollars judgment three hundred sixty thousand everybody move on ok my going to be disappointed with that that may be a fair conclusion given the confusion in this case so i'm not going to say i'm totally disappointed but i don't see how it goes any further than that i don't see so you see a basis or you don't agree with what you see how  had as i said i think there's a lot of confusion here but but if this court said look we're going to find it's a fact question as to what's attached to this contract i can go back to my client say that that's a fact question and frankly i can see that's how the court rules but when i go back to my client i want to be able to say oh by the way though your contract says two percent everybody agrees it's two percent and it's two percent of whatever computer damages but they show now i don't believe that after i revenue years it's true of years they have the right to go back now and say wait a minute we can speculate as to these damages we want our own client who is a little bit biased here whose business was in the toilet and did an assignment for benefit of creditors just to get out of the personal guarantees to american national i don't know if i want to rely upon him as the most accurate source of the value of business but clearly the records were there and he had the burden of proof to go look at those records and computer and interestingly in this case as opposed to other cases he had the right to turn to the defendants and say you have to pay half because we got an agreed order that you're going to pay half of that cost he didn't he didn't believe in the south of that so i don't know how you walk into a room when all the records are in the same order they've always been kept and keep in mind there's no dispute the records were in the manner in which they were kept in the ordinary course of business i don't know how you walk into a room like that and say oh it's just too many i don't have to look at it i mean i did claims for work on mccormick place when they built the addition as a as a construction council and in the course of those disputes they sent me over to a room somewhere and said there's the files there had to be fifty to one hundred boxes a bank or boxes of files and guess what i spent weeks going through every single document i just don't think that counts or has the right to khamenei and say that was too much work we don't have to do that i'm just checking my notes like i don't the way two years of customers that are contained in exhibit a which is the customer lockmaster list it doesn't say some of the customers or we'll talk about which customers are on that west it says the customers all of the customers listed on exhibit a mr k is to be paid a commission so what's the judge which the factual determination that exhibit a with the customer master unless that ended that discussion that meant mr k was supposed to be paid commissions on all of those customers that came with him and that were served by him or by prolix as to the comparison of the recitals to seven am seven b seven and seven b mills with the recitals seven he says mr k gets five percent in general when it's not his customers seventy says he gets an additional two percent when it is his customers for a total of seven percent that's essentially the same thing th the there's two items we go back to this question of what documents were available the documents that were in the warehouse were not kept in the normal course of business this was three years after because of the time it took to get through pleading  did the research and it was for the amount of money at stake in this case it was going to cost according as isn't in the record but we were told it would be approximately one hundred thousand dollars to do that and we didn't and i don't know unlike what difficulty trial judges here is that they assume when the bell rings that the lawyers are ready they say they're ready for trial they're here for trial to hear their evidence hear everything they want the judge to consider to win the day and then the attorneys just can't come through with the evidence and then the work is all supposed to figure out a way around all this stuff the bottom line on this issue judge  is that we did put on evidence very good credible evidence about not smart the sales work in the intermediate years but the sales were in the outside years and what the sales were intermediate years by a person who had knowledge very very good knowledge to to to not allow us to put that evidence and we were allowed to offer proof but the judge  entirely he didn't sav looked at that evidence i've heard it and i think well i'm going to give him thirty percent of it i'm going to him said no he refused to listen to it it was good solid credible evidence and whether those documents that were strewn on the floor which were not in the ordinary course of business were there or not we should have been allowed bad evidence and it's a gross miscarriage of justice for us it's just simply not fair for mr k once there's a ruling that he's entitled to commissions at two percent or seven percent again i think seven percent is the right number and by the way the confusion on that is very simple he gets seven percent for his direct sales based on five point two but you get seven percent number right yes all agree with this i don't i would i don't and just as importantly i think it's totally unfair not to award mr k commissions for the thirty four months he was there and worked on which everybody agrees that if we look at it so you're saying the rule is eleanor i is if the salesman will spring doesn't want to look at the documents the original document what how would you differentiate this case so that in any case the sales person could just say i don't need to look at those that i'd put them to go myself myself where the year before a year after you know what they were a couple years after my just as good we don't need to look at those documents what we even have discovery then we just have the that's the case one element is clear that all that matters is whether the individual's testimony is credible the defendant could've used  documents and sad after we put in our offer proof the judge had not decided yet whether he was going to accept that and to have it as they could have used the documents and sad are now those were not what the sales were we evidence was good solid credible evidence and we spent one hundred thousand dollars to put all those pages together with that have supported the oral testimony i'm sure what happened i've been very close but just because those documents which again i tell you were not in the ordinary course of business we could've put them together probably for a very large cost this was good testimony it's not totally unfair and there was no opposition to it by the defendant they didn't get on the stand and of proof the judge would not sad at at that point that he would not accept it into evidence to find the defendant and i think there's any reasonable testimony against it i get up and say sell and we're not saying that he you know that that he's entitled after hundred percent for saying that his evidence should be considered you know it's not fair to say that he's not going to get three years almost three years of work which we say he's entitled to get to live with  look at a little differently did was your testimony and if there was who testified as to the cause because what you're saying is the reason you didn't do it ok but honestly ron i am not just trying to be stubborn i don't really think it matters i mean i suppose it helps our position a little bit in a sort of equity way but in the end he should have been entitled to testify he knew what was going on he knew within a certain range what the sales were to all of those customers they didn't suddenly go by only from two thousand and two thousand and one and then go down to nothing and then go back up in two thousand  the new that we had supported by the documents that we managed to find that were not produced by prolix and then we we took batting average and we put them into the years for which we did not have that kind of number you find on that exhibit is the number for the first form as it is the number i don't remember what the number is but you can guess that it's about two and a half times one hundred six thousand because we're missing about two and a half times of our work there and  was paid his direct sales that's not in dispute he for the first time he was there he worked for five years he worked every day when he's made sales in those missing years to a drill or rob things he was paid he never disputed that they  yes and so for the pretty years that we have basically some of the documents we proof out and the judge awarded that for the years we didn't have those sales in a documentary way he did not would not hear our evidence on that and did not make his award on that basis and that to me i think it's just simply not fair we we aren't