meeting of an agreement i am advocating for the enforcement of a written agreement i am advocating for the enforcement of an agreement with stipulated terms and i am advocating for the enforcement of agreement that comes later in time a body that's a lot of gloves that's a lot of gloves but as much as three million go ahead not as many as three million we sent purchase orders for the gloves brando accepted the purchase orders shipped the gloves we paid them about nine hundred fifty thousand dollars for the gloves the terms of that controlled those purchase orders that came with purchase orders were stipulated and to give you a flavor of just a few there are many that i could go through that preclude grand o's case but one of them for example says gander mountain has no obligation to place other workers this is after you've talked to him for how many months nine months  has no obligation to place orders with you gander mountain can stop doing business with a vendor or at any time in its sole and absolute discretion without cause the terms also had a integration agreement this is the entire agreement between the parties and it also had a provision that says this supersedes all prior agreements written or world despite this and other terms that would preclude it grand zero sued because of an alleged oral agreement to send a three point one million dollars worth of purchase orders grandel contends that a gander mountain buyer agreed in november two thousand and eight that gander mountain would spend three point one million dollars with the purchase orders for gloves all right so it's all precluded by the purchase order in and minnesota has a narrow reasonable expectations doctrine as well you might have tried that but they didn't try any of those none of those were argued instead of what the court ruled during trial was the purchase order terms and conditions did not go back and wipe out the oral agreement because there was no consideration the court said they already had an oral agreement for three point one million dollars worth of gloves why would they have agreed to these purchase order terms doesn't make any sense ok the judge later conceded he was wrong about that his pose f consideration isn't really a requirement even if you assume that there was the oral agreement but he said then in his post trial ruling the jury was free to find the grand oh did not agree that the vendor terms terms where the entire between the parties well the trouble with that is number one the judges ruled against me as a matter of law on that already he had said i ruled that the order terms can't wipe out the oral agreement you are precluded from arguing that to the jury don't do it and he said it more than once in addition whether a written contract is integrated or not is a legal question it's simply not an issue for the jury and in this case the jury wasn't even instructed up about so i'd say the idea that the jury was free to find that this was  entire agreement is just incorrect it's an app that can as you say you say when they got only nine there are almost ten thousand dollars of the gloves on the first purchase that was the whole deal and that was the whole agreement it wipes out anything done before then and controls anything after then that was the terms of the agreement if they bought one pair of shoes i think it was either one pair of gloves i'm sorry they bought one pair of gloves a day i think it is better to look at it in the context of the really other true facts which is we bought nine hundred fifty thousand dollars worth ninnies and but you're essentially making a consideration argument you know you're essentially getting back to how much is enough well we fortunately i don't think are facts present that because nine hundred fifty thousand is plenty but yeah i would say the first order of it was six thousand one thousand whatever it was if the parties agreed this is our entire dream and then they agreed that that now the  governing the parties relations you cannot assert promissory estoppel it doesn't apply here we have a contract that says this is the entire agreement we have no obligation to place orders how could we be more clear i mean the general in house counsel wrote this is in the audience i'm sure he would be interested how could he have written this better to have precluded and if you read the terms and conditions there attached t threw out one of the principal purposes is to preclude a vendor from coming in and saying we had some you know deal there was some side deal there were some this deal or that deal it says we only deal through written purchase orders that's it that's the only way we happen we have purchase order terms and conditions that works acted by shipment under two to us x so you've got the contract that's it the terms are undisputed and they preclude the or brando argues number one you can't retroactively apply the vendor buying agree ok now if you think that through retroactively isn't even volved here the vendor buying agreement arose when they shipped gloves in response to our first june two thousand and nine purchase order and all the subsequent purchase orders ok does it matter that these are unique goods we kind of danced around the u c c edge yes you see it's all different rules on you have such pacifically identifiable goods they can use the damages theory that they use which is what they have sitting in their warehouse it would begin around trademarks they can they can recover for that so those are the principal the principal impact of that in addition to the retroactivity point which i don't think is applicable because as of right now or you know as a june of two thousand and nine the terms were we have no obligation to place murders with you  cancel any time we can terminate we can you know all those provisions were in effect as of june two thousand and nine there's nothing retroactive about the second thing they argued was that we waived gander mountain waved the buying agreement by the oral agreement but that kind of has the cart and the horse in the in the wrong order there because the oral agreement supposedly occurred in two thousand and eight and then the vendor agreement with the purchase order terms agrees in the  the summer of two thousand and nine so oral statements in two thousand and eight don't waive an agreement that both parties agreed to in two thousand and nine that just doesn't work the third argument they have is that there was a written approval to vary the vendor buying agreement and what they're referring to there is an e mail from the from the buyer the game around buyer sent an email in the course of getting this system set up to send purchase orders again around buyers sent an email to an independent sales rep for grand oh that said please put into this spreadsheet all of the forecasted quantities that we committed to ok sounds good for them committed the forecast were doesn't work so well for them but committed to you know enter into this you know the numbers that we forecast and committed to all right so that doesn't constitute an amendment or a waiver of an agreement that you then enter into months later the agreement gander mountain seeking to enforce is the last thing that happened that those are the terms they get enforced so you can't and if you look at the e mail it's part of the record you know it's not as though it refers to the buying agreement and says we're intending prospected lee to waive something we're going to agree to in a few months it doesn't come close to  so it doesn't work as a matter of logic it doesn't work as a matter of the terms of that e mail it simply is and does not constitute any sort of a written approval to vary the terms of my remit so at the end of the day would gain the seeking to have the court in force is the plain meaning of the written agreement stipulated to by the parties that was the final agreement in their pl in their business relations that under minnesota law should be a fairly easy case and i will skip the parole evidence rule arguments because i don't think it's necessary to even reach that point and unless the court has questions i will reserve the balance of my time  in this appeal gander mountain is essentially asking this court for three things they're asking this court to ignore well this to well established contractual law they're asking this court to make an exception for their failure to follow procedural rules and they're asking this court to completely disregard the overwhelming evidence that supported the jury verdict or the trial and matter throughout this case this has become a common theme for gander mountain but there are two sets of rules there's a set of rules that applies to gander mountain and then there's a set of rules that they can twist and turn and contort to apply to vendors when it's convenient for gander mountain and that's precisely what happened in this case did you agree to the vendor buying agreement your client agree the vendor buying agree there's a there was no intent the that would be come the entire contract for what we're talking about for this transaction as end in one thousand nine hundred dollar vendor buying manual or v b a was actually sent to all the enders in an email blast in two thousand and seven and it wasn't actually the vendor buying manual it was a link to the manual and  to business with us these are the terms and conditions and you have to click on the link and read it maybe maybe not the testimony from my clients was that they did not read it and the custom and use are standard in the industry is they're well aware that there are these vendor manuals but they look to them for specifications regarding shipping details you know things of that nature how things should be packaged and what not i go back to the timing of this and this is very important the first purchase order wasn't issued for the private label love transaction until june of two thousand and nine that was seven months after the initial meeting and the agreement that was reached for the for the manufacture of private label seven months that time was baked counsel for some reason i thought the vendor buying agreement came  first purchase tell me if i don't understand that i think what gander mountain has argued is that there was there had been some previous dealings between the parties not involving a private label transaction in other words my client had manufactured i think it was probably slippers or gloves but under their own label and in that instance i think they were trying initially to argue that once that initial transaction occurred that  forever agreeing to the terms and conditions of anything that would happen from here until eternity that was the first argument they tried to assert but in terms of whether or not there are specific language that goes with the purchaser to say you have now when you accept this purchase order you've now agreed to the terms and conditions it's not in the purchase order it's in the v b a the v b a the agreement becomes the entire game and because you've got the purchase orders you've got the resource allocation contract and  they reference other documents but here's another important distinction i think that needs to needs to not be overlooked the cases that gander mountain cites in support of this theory that we have a written agreement that governs the terms and conditions and how of this entire transaction the cases that gander mountain cites in favor of that are in support of that premise all involve actual written contracts that are signed by the would say it was before two thousand and seven but really we're talking about the v a terms from two thousand and seven that initial e mail blast that went out with the link so the other i was there no reference to how long they've been doing  that the only reference was just the initial the earlier transaction in two thousand and seven but again the distinction there is we're talking about randall label goods not under mountain label goods that my client is now stuck with and cannot sell that's the difference and there's the evidence i can't be sold at all anywhere in the world there was testimony from rick mccabe who is no longer with gander mountain but he had testified that he believed my clients would be able to sell them in south america that there would be no restrictions in south america but the jury verdict believed that a little bit right because you can get all the money you ask or you know we did the jury believe that little bit you know your honor we did get all the money we asked for you sure yes oh yes but you didn't go ahead you know we did we did receive all the money that we asked for and the money that we asked for was actually the value or the price of the gloves that were left there were some gloves that they were able to once the ground zero found out there was a dispute or an issue they were able to stop production they were able to either stop production there were some shortfalls in the production and then there were there was also the ability for some of the gloves to be really relabeled so that they could be sold without infringing upon the owner mountains logo i think it's important to go back to this idea of what the court what the court looks to when determining whether or not this agreement was the integrated written agreement were governing this transaction work was the effect of your stipulation that the v b a became a part of each transaction  of the contract which leaves us with leads us actually to the next issue which is we believe there was a contract for not just the one hundred fifty thousand dollars but actually the three million and that's why the claim was appropriate and why it was appropriately submitted to the jury if the if gander mountain is taking a position there was one contract and it was the contract for which we issued the purchase orders then then there is no contract to the other loves and so that was appropriately submitted to the jury for their consideration on whether or not ground zero had a promissory estoppel claim and the overwhelming evidence supported the fact that ground zero didn't fact have a claim for  they took several steps in reliance upon the promise that the gander mountain buyer made when she went through each individual item line by line during that meeting in november there were two meetings on november first one was to talk about the in line in line and early season production and the buyer knew that in order to get the discounted early season pricing she was also having to make a commitment to  purchase the in line as well which was at a regular price so they parties went through line by line and decided what how many gloves what type of club what type of fabric she would want what type of buckle where she would want the collapse class where she would want the logos all of these things were decided at that the end of those meetings on november two thousand and eight or two thousand and eight and my clients went back to work and started ordering raw materials started holding weekly conference calls with the buyer to discuss everything you know how does this logo look this is not this is how we've done it and all this time the  purchase orders are coming we'll be issuing the purchase orders we're committed to this program and the other thing that gander mountain wants this court to adopt is that when gander mountain uses a word like committed over and over again that it doesn't really mean that commitment we don't just mean that it is a forecast of the same sims or cast that we committed to and the buyer had the opportunity to review that information once it was entered into the the items top form and she never objected she never said no that's not what i mean that she met with the vice president of sales at the outdoor retail show in january of two thousand and nine this was five months before the first purchase order was issued and she again reassured the vice president of sales we are committed to these programs and it was based  every everything that they everything that gander mountain did all of the actions all it did was reaffirm the agreement that they had reached in november of two thousand and eight the buyer also made sure that gander mountain logo and the permission to use the gander mountain logo was provided to ground zero that's another sign or indication that there is that they've reached an agreement they had an agreement and both parties were acting as if there was an agreement light the e mail from the buyer indicated we had to cut some of the styles we had to cut some of the quantities or styles that's an indication that she was well aware of the fact that she had agreed to all the quantities and styles that the parties had discussed and reached an agreement on in november of two thousand and eight looking at all of those factors the court made a determination that there was a fact issue as to whether or not ground zero had in fact intended to be bound by the terms and conditions of the v b a when it excepted a purchase order for one thousand dollars worth of gloves in two thousand and nine seven months after the parties had initially reached an agreement and that was why the court determined that it was appropriate to submit that issue to the jury now there are a couple of other items i just want to quickly bring up with respect to the failure of gander mountain to follow the appropriate procedure the fifty the the rule fifty a motion to gander mountain submitted at the time of the trial focused on the fact that there was insufficient evidence  contractual offer that there was insufficient evidence of acceptance of the offer that the acceptance of the purchase order meant brando agreed that gander mountain was under no obligation to issue further purchase orders and the final point that they made at the fifty eight was that the buyer had no authority to enter the three million dollar contract for private label gloves what was missing from the fifty a motion was that the parole evidence rule  prohibited every any evidence of the oral agreement that was never presented to the court what is also missing is they never i thought the judge already kind of ruled on that issue you know that's the reason they say they didn't put it in there well  meant that they were no longer obligated to purchase anything else but that is not quite the same as saying the terms of the v b a the merger terms prohibit any evidence of the oral agreement there's a it's a fine distinction but it is there so my point is they failed to follow the proper procedure and for that reason they may have waived some of these arguments that they are now insisting are necessary in this case for the court to overturn the jury award of the jury verdict especially with respect to the contractual issue that the court or that the court heard and it was also submitted to the jury the buyer admitted that early as february of two thousand actually january of two thousand and nine that she was still talking with other but she never bothered to let grandma know about that she also admitted that she was trying to get the best price possible and she never let ground zero know that either another which she hid some of these facts from brand leading grandel to believe that they had an agreement to manufacture these gloves but at the same time she's trying to get the best deal possible it's not appropriate to allow under those circumstances with respect to the promis it's not appropriate to allow gander mountain out of this deal it's not appropriate for them to say look we issued a purchase order in june of two thousand and nine random except to render us stuck holding the bag for the remaining inventory that we thought we like d we decided we get a better price somewhere else that's not appropriate based on those arguments your honour's we would respectfully request that this court affirm the judgment from the district  to try to hit some of the issues that came up with respect to the vendor buying agreement where is it how does it get to the vendor since the party stipulated that it governed the purchases here a lot of the evidence on that didn't get into the record i think that was wise on his bachmann's part to stipulate to that because there's a bunch of evidence on that that we would have presented that we didn't get into the record so what i have to do is say we stipulated i'd love to tell you about more but actually the c o o is responsible for reading such things and making sure we comply ok well this was the first time anybody had ever heard of that the c e o is not named in this covering nobody called him he wasn't available you know so all of that detail is interesting but ultimately irrelevant because not reading an agreement they entered into is no defense at all first purchase order was june of two thousand and nine i think the significance of that was that he was making well i don't recall the significance of that we first started to send purchase orders in april which was plenty of time for them to go manufacture them in china and send them over here that was when we found out that they had already started manufacturing them and us that at that time as a matter of fact they had a meeting at again around offices and bannerman's buyer said look at the terms it says we're not obligated and they agreed there president's testimony or maybe that was their vice president sales testimony said she pointed to where it says you got a right to cancel it was right there ok the purchase orders and the agreement came after that it was specifically drawn to their attention and they accepted the purchase you come up with a price list all those conversations occurred in the course of those discussions i see that i'm out of time so i want to dress any other points thank you for hearing this matter and we ask that you reverse the judgment