this this case this case turns mainly on the issue of contract interpretation two separate contracts the reason that i said mainly is because if you happen to disagree with  have to disagree with me as to how the context should be interpreted in you agreeing with the holding of the district court then there was a trial on the damages and we believe that some errors were committed in the trial b there are there are there are two separate contracts we don't contend that they're ambiguous we contend that they are really clear this speak for themselves but what i want to do in my time is to address some  you that you will agree with our position that this record erred when he granted summary judgment and held as a matter of fact and law then my client breached the agreement and is liable for  repayment of certain commissions so here so here that here are the two contracts the st contract is between wealth mark my client and phoenix insurance company ok that's a distributor agreement it gives my client a right to sell their products i mean obligates them to pass commissions specific situations the commissions which are paid can be demanded to be returned and i'll get to that in just a nd the nd contract then i'm really go say it's a two part contract and is known as the assurance of discontinuance agreement there was entered into not by my client but by phoenix understand of minnesota the state of minnesota investigated certain practices of an agent that was a in the chain of distribution that my client was on top of  and that assurance of discontinuance generated a couple one hundred separate contracts which war in turn entered into between  tab number one is the excerpt from the agreement that simply lays out the obligations of wealth mark as a distributor to repay commissions on a certain circumstances i don't think there's any disagreement among the parties and i think not not i think the court also saw found that the repayment obligation is not absolute  states repayment of commissions except as otherwise provided in a compensation schedule and then goes on from there in the event of a chargeback of commissions any compensation paid by phoenix must be paid  so what i get the compensation schedule in just a nd but again there's an obligation in india know this and i'm sometimes stating subject to the compensation schedule the agent must return his or her commissions phoenix gives the money back you give your commissions back compensation the provision that this that this repayment obligation is subject to is found in the compensation schedule which is which is in tab number two full or partial surrender of the contract within six months of a shoe a fifty percent charge back will occur or upon a full or partial surrender of the contract three months seven to twelve we don't need to reach this decision yet but if they are reading number one is that if there is a surrender after twelve months then no commissions s in the st six months if there's a surrender you pay back one hundred percent of your commissions and if there's a surrender in months seven to twelve dollars you pay back fifty percent and if there's a surrender after twelve months from the date of issue of that policy you pay back nothing but suffice it to say that if there is a surrender there is not a one hundred percent payback of commissions not here's what's interesting with this link which as compared to and i go back to what's in the actual contract example said that how how the surrender comes about specifically it doesn't have to be an actual surrender by the policyholder he doesn't have to be surrendered by the policyholder in accordance with the surrender provisions of the contract all it says is surrender why is that significant if you go back to tap number one in the repayment of commissions section surrender is defined as one of the instances in which repayment or of commissions is required and here's the language they use and i apologize if you look we box this thing out but the repayment of commissions must be repaid number two if a phoenix product sold but distributor is lapsed surrendered cancelled or otherwise terminat i don't want to interrupt the flow of your thought but you've got only got six minutes left so you need to go precisely to where you think the magistrate judge industry cared in this significant with this language years in the contract which is qualified by the by the schedule is that phoenix used a very precise definition of the circumstances under which commissions have to paid back it's got to be unpacked by the policy holder pursuant to provisions in the contract that same language was not carried forward in tab number two in the schedule input nobody it doesn't say upon a full or partial surrender by the policyholder accords or terms of the contract it left it just the words are and so on i'm going to get to the punch line so phoenix and the state of minnesota entered into a deal to give relief to two hundred dollars plus policyholders which ended g relief to two hundred dollars policyholders and part of the deal was if relief is going to be given then the policy holder in phoenix must enter into a separate agreement that stab number three be deemed surrender and the explanation for that is they wanted to make sure that the policyholder understood that once he or she accepted this they had no hope for the rights under the policy and couldn't also surrender it and get the cash now to walk they chose to classified this deal as being a rescission determination a cancellation  knowledge and the surrender not legally speaking i'm not going to disagree that it was also a received him but he was classified as all of these things but the only two things that matter he was classified as a recession and he was classified as a surrender phoenix wanted diddling with in there because it's served a purpose for them we need  that this contract was deemed surrendered because it benefits us nobody objected we weren't there we didn't object nobody was there to minnesota said it's fine customer said it's fine so now we take this language and we say words have meanings you deemed in a surrender and now when we point out footnote eed that is upon a surrender not actively by policy holder but a surrender back and you have time for a bubble thank you all righty mr chambers if we get paid you get paid if for any reason the sale falls through and the commissions and the premium has to be returned by phoenix wealth markers to repay its commissions if we don't get paid you don't get this is how commissions work now there's no factual dispute about what happened here the minnesota attorney general expressed concerns over the way a wealth mark net representative named tony french who sold a number of phoenix news in response to those concerns in some on unsuitable sales there potentially misleading circumstances under the settlement agreement between the minnesota tourney general and phoenix the assurance of discontinuance there was no fine if all that was kind of result short of that but it was have to be repaid under the distributor agreement between phoenix and well argh now darg you otherwise well mark makes two main errors st it ignores the fact that the distributor agreement confined to its four corners provides no basis for keeping these printed so looking at that contract by itself which they've agreed is unambiguous the these premiums or these commissions have to be repaid so what do you do with the word products listed in the compensation schedule and the reason for that is because different annuities have different surrender terms the phoenix edge product for example does not permit well mark to keep premiums under any circumstances even india pointed out if you go to the repayment for missions paragraph so paragraph two uses the word surrender to refer to a specific rights given to the contract holder by the terms of   what they were however is they were a return of premiums if you look at sub paragraph one of the repayment of commissions clause that says that i should phoenix for any reason return a refund any discontinuance that was signed five years later there's a preliminary problem with that approach some bit that hasn't been addressed it's even if you accept the idea that the course would be looking outside the four body of that document say that phoenix will surrender the policies and this makes sense the annuity holders already had a surrender right under the annuities there was no need for the attorney general to go to bat there was no need for phoenix to enter into a separate contract to give them that right any one of these annuity voters without any action from the attorney general or phoenix had a right to surrender their policies a separate contract was required to give them the rescission right that was contemplated in the issuance of and they accepted an offer as a result they won't necessarily know what rescind means if the term is used by itself this explanatory language is there to make sure the annuity holder and was that if it except just offer that's the end of their rights under the contract it's done it's cancelled it's terminated with no limits or and the district court pointed out that's a good reason the word surrender has to be used in the sentence under the annuities the annuity holders all important to make sure the annuity holder understood what that meant but even if you just look at the word name surrendered by themselves in isolation you still have to give some effect to the word deemed now the way it was mark interpret i mean the name surrendered for all purposes in relation to all individuals including parties who are not party to this agreement or mention of it that's just a surrender according to both mark deems surrendered just means surrender but the district court recognized it has to give effect to every term so in order to get affected deem surrender you have to answer the question deem surrender for what purpose and here again the context of the agreement answers that question it's game surrendered as  it wasn't at the table phoenix couldn't unilaterally change its rights on this if it wanted to and that's very clear if you imagine the reverse if you imagine a transaction by which phoenix allowed into any orders to surrender the policies which would what the transaction was deemed as between the annuity holder and phoenix what matters is what happened and again it's undisputed this was a rescission and premiums are bitter whether you look at the distributor agreement confined to its four corners as you say since that document is ambiguous or if you construe that document in conjunction with a separate contract with separate individuals signed five years later the answer is the same wealth mark has to prove an event even if the event is reflected by writing the example that gives it that is this case says quote for example payment may be proved without producing the written receipt which was writings as a result the district court properly admitted phoenix's evidence of the payment was testimony from its witness and summary of its internal records and acting as a trier of fact the district court pro what matters is what happened i agree with that and also greet with the fact that wealth mark no agent is a party to the contract that is issued between an insurance company and the insur all we have control over is after something happens to that contract which you mean exclaims triggers a repayment obligation i have the right to say so what you just activated put no to me i guess i don't owe you any money each you chose to characterize the transaction as a surrender or you a rd party beneficiary of that agreement you know your honor i kind of started researching that and i kind of hit a dead end on that because as you said you never hear crime he was sorry because he was not intended for my benefit but you are but you are stuck with the deal you may like and i'm not sure who said it but i think you're correct there was if you wanted to maybe i said if mean we're watching it nauseum for some nauseum and for some it's interesting all these impeachment hearings wards have meanings you use those wards you're stuck with them you may be sorry used those wards but you use them here they use the words they classified the transaction as a surrender it activates footnoting trial obviously i disagree with the best evidence rule not being applicable there representative clearly stated in response to my specific questions so how do you pay commissions check and electronic funds transfer if he's correct you keep copies of those absolutely we keep copies of those great so what he show me here well this is this is runs which are literally hundreds and hundreds and hundreds of pages great i have a problem with the fact that this is a correct summary of those commission reports the commission reports that is not this summary or the testimony of the witness but the actual checks and eat f t s which they keep copies of now i said this in my brief i'm going to say in the last in the next six seconds you may say well mark knows what they get paid come up but frank chu we have no clue that he got paid two million dollars and you are trying to impose a two million dollars judgment on me