the point i'd like to first address is what i believe is a fundamental this of mistakes made by the lower court that resulted in i e sees requests for an injunction all of the basic fundamental requirements of the contract there was oregon for consideration consideration either on promises for performance going in either direction if it had sent it was stand up it was not enforceable and he came to that decision by application of two principles one was the idea of creating this new duty and the other one was application of the eagle doctrines pertaining to not complete agreements that deal with at will employees the first as to the we have cited corben which is a basic tenant of contracts and it's a problem in the state and it's that it isn't enough to have a new agreement that isn't forcible even though there may have been a prior one if there's some small additional performance parking for and give it that's the law in response apple e say cases where there was no additional obligation he says such as a real estate broker who was already committed by contract turn of the process no additional know what additional consideration was needed the existing agreements foreseeable and the subsequent agreement was not because of the the other mistake that was made is that when the court below looked at the question of consideration it focused on a series of cases that dealt with at will employees who brown and brown the courts look to consideration for that for that covenant the covered it not to compete and in cases such as brown and brown the courts have said generally that you need these two years of additional employment to support and not compete in the situation where you have an existing employee who is at will if and then that consideration was sufficient under one way to get the brown brown type analysis and that's not the law and in fact the consideration that is that was demonstrated  contract the base salary was the neighborhood of eighty two thousand dollars in two thousand and nine after a negotiation xin bargaining dr hayden a nice seat reached one hundred ten thousand on a gross number in terms of what the bonus would be calculated as after a certain threshold had been reached by dr hayden the new agreement was premised on a net number and that number was without any threshold first being achieved early deferred new considerations new form of agreement bargain for doctor patient came back to i e c and said that he wanted to make sure that there was some sort of floor limit on what the company could charge by way of corporate overhead they negotiated it and it's in the contract can't be more than fifteen percent they negotiated they negotiated two thousand and  new formula for the first three quarters and all and if you see the sixty seven thousand dollars he received all of that in the operated on that until until he resigned i see then sock report attacking the the lydy of the two thousand and nine contract making an argument that it was not it was not enforceable and again two arguments came up one was the was the pre existing duty argument and the other one was an argument regarding ground and ground which says that case that will ploy is required to sign a exists in the state that deal with medical professionals and in most cases are very telling me start with case of power in one thousand fifty six they move on not to of all the way to my head you all recognize that professionals for this kind of people have the right to bargain and they should be able to bargain and they should be able to reach their own terms and here they did they came up they bargain for a not compete agreement very similar to what wasn't place in two thousand one modified in two thousand and six so that it provided for a twenty year twenty mile radius three years that had been in place in two thousand and six they came up with an additional modification to it thousand and nine but really bargained for and go between the parties that whether it is the more heavy standard that pertains to professionals medical professionals such as dr heaton in negotiating with their employers that's the standard of  now to move on so the real dilemma comes next after the court rejects the two thousand and nine contract on on what i believe is misapplication of some basic fundamental contract principles the lower court has aptly argued stated that well you don't meet the standard for getting an injunction because you haven't proved likelihood of success on the merits the reason that argument was made is because paid according to the formula that was required required by the two thousand and one contract and of course it hadn't been paid under the new formula because both parties dr hayden nice steve were operating under the assumption that good one too that the two thousand and i contract was in operation so they computed the bonus structure for dr hayden every quarter based on the net percentage which which didn't back out of the the abil to earn him more money and as of the first quarter of two thousand and one fact was better than it had been under the gross structure but it wasn't the same structure the same formulas requires by the two thousand one some naturally the parties didn't follow that i see paid according to the two thousand and one bonus structure dr hayden accepted the payments as given to him in two thousand and nine following the next formula again dr hayden except the sixty optician direct violations and at that point we get the challenge saying that two thousand one contract should be nullified in the po so they couldn't renegotiate without providing ninety day notice they could renegotiate but they were operating under eat with this two thousand and one term she wired to do the adequacy of consideration to support it stripped of coven that requirement is not limited to employees at will and there is no special exception that would apply within the medical context all of those cases mojave included mojave doesn't rest consideration specifically because it was not an issue in that case but consideration is an issue in all contract cases number one and in particular eleanor in cases involving restrictive covenants that's the lesson of  consideration only factual statements that are required to support consideration or rejected or arguments that point in time of finding that for planning purposes they had satisfied that burden but if we look thousand dollars and we had stripped a restructuring of the onus arrangement but it wasn't define it we argued to the court i think correctly that it was a  stealth allegation because actually when you look at the base pay and the only structure i know we felt and continue to believe that dr hayden took pay cut in agreeing to the two thousand so at that point in time we were going forward on the idea that the consideration of supporting the two thousand and nine trial sheet was limited to base pay and the restructuring of the bonus when we got into the luminary injunction hearing we learned some important facts and evidence which undermine that theory specific t testimony of i e c s principal witness teresa carter and some of the documents that were made in evidence suggested in the show that the whole intention of  covenant in that there was language taken out of the two thousand and one term sheet which excused dr hayden's performance in the event of an i e c preach or determination without cause now the for it was no exchange regarding that particular provision was slipped into the contract now dr he was negotiated back in court threw out this time as he represented by counsel he was not you still see receiving some consideration but he is not he takes a pay cut and gets a worse contract if that happens that happens but if there is a preexisting obligation on c to pay him according to the two thousand and one tranche the preexisting doing all steps in and acts as a gate keeping function to say can't do that someone shows up and reads first two to put a new roof on my house for twenty five thousand dollars and i say fine and then you get on the job site and says hey i want thirty five thousand dollars for the job  trial judge correctly exercised his broad discretionary powers that is the issue that is words or and i think the standard of view which is connected with this makes sense or against the manifest evidence and we cited a number of cases to support that point and i understand that there are cases that come out with the initial statement that questions of consideration ari which law but when you read those cases the question of all that is cited by courts is what is consideration what what an evaluation that quality of the consideration is given in a particular case in those are intensely factual findings as the briefs show the briefs with all of the numbers floating  around in what what is what is good and what is bad in comparison to the two thousand one trial sheet as an actual determination that the trial court made in this case and what he looked at when he made that documents in front of her and we got through two ears of going through this exercise showing that based on historical performance dr hayden took a pay cut at that point in time counsel for i e c stipulate that you know yes if we continue to go on with this exercise it will show that applying at the two thousand and nine term sheet to this work of data it will confirm that dr hayden took a pay cut which is no surprise because that is what the whole intention was in trying to renegotiate the contract and so the court and i know in the briefs there's a lot of criticism of why should we look backwards le forward and i think the answer to that is there's no rule that says you have to look backward we have to look for it's it's the trial courts discretion so listen to that evidence and make a determination rent  starts out with this statement that consideration issues are questions of law but just as the cases we cited of the johnson case in the mid town petroleum he's after the court comes out  case well i disagree with the premise that the likelihood of success on the merits question off i think it's clearly in this case a question of fact that the court decide and it applies to the all of the arguments actually that i see is presented in its appeal the consideration issues whether dr hayden ratified the contract and whether there was a material breach by c which excused after his performance i think those are all factual issues that the court is entitle to consider and make a determination exercising his questions of fact l is your client claiming you did not read ok yes he is and the evidence showed a number of things on the ratification issue because it is true you continue to be employed by after it started out there was a problem with the contract he signed it and mark next to his name under duress the or the contract went into effect the pay us the pay it just once went into effect on people one he he corresponded with i see he told them this was not his agreement and he wanted to reconvene discussions about his arrangement going forward he then continued litigation insane there is not enough here for me the trial judge to put the weight of the authority of this court and its equitable jurisdiction behind a contract that shuts down a professional from applying is chosen trait that was the court's conclusion at this point in time and we believe runners that that the situation should not be dist i want to write under duress whatever that meant he did that nothing came of it he never thereafter sought to rescind equipment or do anything about it or say that it wasn't in a fact never refused to take his payments based pay make sure that he would have at least the minimum bonus in two thousand and nine and thereafter so they talked to him about that so yes they did talk to dr hayden because he was an important part of that practice and they want to keep the man happy and that's why before he signed it in february of zero three when he asked to make sure wisely sophisticatedly asked to make sure that there was a cap on what the company could charge because of the net calculation and bonuses what they would charge for corporate overhead negotiated fifteen percent cap he knew what he was doing and they did that to keep dr king happy this wasn't a take it or leave it situation dr hayden didn't have to sign the two thousand and nine contract as you heard the two thousand and one contract was was in existence until this replaced it he did that freely and openly and willingly now what we're hearing in this appeal is some sort of notion that i think he's also argued the lower court and causes part of the problem that you have to have singled out some sort of special consideration and it has to be adequate real adequate very substantial again playing off on those that will cases to support eight a covenant not to compete that's not the case that's not the case but in this court's own opinion in  in comparison to the two thousand one they are substantial they are different under poor opens analysis and of course that that client corgan they don't have to be that much different at all just not exactly the same some change but to the day he quit in two thousand and one and guess what he comes out ahead substantially under the new two thousand and nine thermal when you add base and you add and you add the bonus that he was paid and the one hand in two thousand and nine is and this is testimony unrefuted and they have in the record which is one hundred thirty seven what he would have or under the two thousand one contract there were claims only response that was that well we don't know how the fourth quarter is going to come up so it might be it might be in the end yes i suppose if there was a catastrophe within within the within the i e c and they shut their doors that might be true as lightly and say