morning justices please the court my name is tom davis i represent the plaintiff appellant in this case william brown and in a nutshell this is a case of a donkey chasing the proverbial carrot on  mr brown was a commissioned salesperson for sprint he was hired at a relatively modest base salary thirty six thousand a year with the promise of substantial commissions if he was able to sell telephone services for hotels and large businesses in the las vegas area las vegas having so many hotels the commission opportunities were extraordinary there as compared to many other cities in the first year that mr brown was employed it was mostly  lay of the land type of experience meeting people finding out when telephone contract expired getting connections so that when there was no opportunity he could make telephone sales he made very little more than his base salary the second year things started to pay off for him contracts and he was able to procure the telephone services contract for both valleys and the monte carlo in early one thousand nine hundred six those are both huge hotels over three thousand rooms and mr brown as of hundred six had maxed out on his commissions he was making over ten thousand dollars a month in commissions he was also working on the circus circus account which is even bigger than the other two now the commission structure is such that once you sign a contract and sell you get a percentage of that revenue over the course of up to twenty four months thereafter so even though you locked up the contract your commission isn't paid right and it gets paid throughout the course of the next few months or up to twenty four months depending upon how it's interpreted and mr brown when he reached that point in mid one nine hundred ninety six was taken out of the circus circus contract it was transferred to another salesperson for only two in the las vegas area at that time and then about a month later he was terminated as a result of his terminations he was not given any of the remaining commissions due on the contracts he had sold he was not given obviously any commission on the circus circus contract which was closed after his terminations by the other salesperson and he was even not paid the remainder of his salary for that month it took him about five months in letters and phone calls back and forth before he was finally even paid the july compensation he was entitled to when sprint eventually refused to pay the commission this lawsuit result and the issue that arose was why was mr brown fired all of a sudden in june and july of one thousand nine hundred six the position of strength is he used a sick day and appropriately that was the reason for the terminations i think if we look at the facts of the case it shows differently and mr brown is not the first person as shown in the record that this happened to people when they have ma commissions to others in that same area in las vegas have the same result either transferred to another area moved up somehow they did not get paid their full round of commissions after they'd gotten the character mr brown changed the care it was taken from him just  was about to reap the benefits of his work in this case the commissions don't go anywhere else when mr brown doesn't get paid his commissions over the next either six to eighteen months sprint he says and they don't go to another salesperson they don't go to another manager so compensation the compensation plan itself provides that's how it's paid out and it says nothing in that compensation plan about if you're terminated we take that away from you in fact it's sprint's documents and if they want to say that they could have circus i think they can apply that he didn't close it it was still in the works maybe they fired him for the wrong reason but that's a separate claim let's forget about that for just a minute wonder about your claim you're an action plan i'm using this isn't a pension plan this was a compensation plan same type of analogy though your honor he cannot earn more commissions and participate in that commission program after he's out of the employ of sprint it does not mean that he doesn't get what's already locked in or his work is completed employee we pointed out in our brief how they pull that from three different sections of the plan and there's two through items on that one it's their language and they could say it clearly they say awfully sporadically in april from various areas and secondly the record was clear that that document was very even given to mr brown everything was given when he signed on for employment he initial law and they put all that in the record his plan was present when i am for his employment let me just clarify one other thing with you this claim to the contract which they wrote says that how can you tell an employee that once you do a b and c we're going to pay you x y and z then you do anything and c and that's y and z away from you it's simply not right and we it very rarely do i get a situation where we have cases throughout the country that say you can't do that we've tried to cases from a number of jurisdictions and i see none the other way i've seen none no case that says you can pull back this commission after it's been earned and in fact in the appellate he's answering brief they completely ignore that argument they cite a few nevada cases and say there's nothing in nevada specifically that provides the protection for these procuring the advertising contracts that issue appellant should not be permitted to avoid pain that you agreed upon commissions for the specific contracts procured merely because of their own collection and accounting procedures  a windfall every time they terminate employee because they do not fit commissions on the contracts previously controlled by that employee until those contracts can come up for renewal several months or years later if we were to accept appellant's argument we would be endors whereby employers could hire employees through promises of commissions and inspire them as soon as possible after the contracts are entered into to avoid paying most commissions and i can't say it any better than that that was the promise made to him other you know  of the second two areas of the appeal we were not allowed to present evidence of motivation for the terminations and the wrongful termination action itself was dismissed for both of those decisions i think were improper because it leads to the ability of the employer to just for any reason take away that promise if you're going to say well the commissions are subject to continued employment in their motivation for him to stay on and he wants to stay on and you send him away then you've got to look at why that happened is it really c it because they want to avoid paying several hundred thousand dollars in commissions and these are contracts that sprint's getting millions of dollars on i mean they're getting the revenue in the payment on the commission which just as revenue was coming in just like in the prevent an employer from making commitments to an employee and then severing that financial commitment enriching itself financially to the detriment of the employee and again i cited a case in both the fifth and sixth circu employer this what i think is very very similar here we have one where he's locked in monthly commission payments that he's to receive he's fired for a reason that is questionable which we weren't allowed to go into in the trial and as a result of that the employer keeps hundreds of thousands of dollars in commissions to which the employee would have been entitle different types of specific take backs with the same type of scenario for the employer and again when you go to the fact that it's an at will employment situation that is by contract we have an employment contract here that allows terminations well there's nothing in there about payment of commissions being out well so even though you can be fired they have to compensation for services is absurd that's not how it worked and again why don't they just say in a specific paragraph or sentance explain clearly to the employee if you leave for any reason no reason  invalid terminations we have the right to take back all of your commissions that stated no where they had control of that document they never gave it to mr brown and now they're trying to use that to hoist him on his home pataki he never received this  t he never received that plan they put into evidence everything that was initially often by him that was not part of their package it was prepared after he was hired and supposedly available for dissemination but no one was able to show how or if it was disseminated this report on testified he never saw it although the financial aspects of how the commission work was passed along to him and an e mail from his supervisor he got summaries of the through plans the new one page summary of the ninety five plan evidence i didn't see in the excerpt as a materially different from the ninety five plan oh maybe i'm mistaken maybe it was just the ninety five plan that was introduced i think there was testimony that they couldn't locate the ninety six plan but that it was very comparable to the ninety five p and turning back from the commission issues to the to the other two items that i have raised as the appeal issues and that is even assuming you give them the benefit of that contract language and say they can terminate these commissions by terminating mr prout then you have to go into those other two aspects you have to go into the fact that evidence should be allowed as to motivation because you can't just let it be done arbitrarily they have to you have to allow that evidence to show whether the there was a breach of the covenant of good faith and fair dealing even if there was an expressed breach of contract now don't get me wrong we feel there was an expressed breach of contract but at least you have to go into the motivations behind it and then lastly on the wrongful termination same type of analysis that was dismissed of the summary judgment stage we have facts that can give rise to inferences that lead to a potential wrongful termination like in the kmart pons act case those facts are where you have an employee who would earn substantial monies that were going to be paid to him you have an enrichment of the employer a motivation for terminations here you have two other people that ended up losing commissions of the same type around the same time when those things happen ed and lastly you've got a situation where there's a questionable reason for the terminations those factors give rise to a potential cause of action wrongful termination as a matter of law that should not have been  dismissed now maybe after hearing the facts the court could have found that it wasn't proper but it should not have been summarily issued a kid it other than additional questions i'd like to reserve my read it remaining time for a bottle certainly co question that you started out with with respect to what in the plan actually addresses the issue regarding post employment compensation and the point and specifically addresses that when it's  no differences why couldn't you produce a plant you have to ask that and the record is not clear as to why that was operative well i find ourselves in a rather odd position i think because you're trying to enforce a contract that wasn't ongoing compensation we're saying no you were never treated that he testified under my direct no one ever told me that he testified no document ever said that and in fact we have a clear map the station what spreads intent was with respect about commissions is fundamentally i believe a mistake this is insensitive happen station it's designed to have an employee stay employed and well he didn't resign so it doesn't matter the problem with that analysis is what does that respect to this compensation why now he talks about why itself was an issue when he was one of the higher and i think there was evidence of the clear these plans came out several months into the year because you're looking backwards to the previous year and looking finally with respect to judge prose decision which was not and there's no evidence of clear he states neither was there any contractual agreement and once again this isn't sprint trying to enforce a contract it's his burden to establish contract and the violation of them neither was there any contractual agreement by sprint to pay point to brown commissions on accounts he secured bought he secured by sprint prior to his terminations where the revenue generated under those well the point summary is exactly what it says it's a summary which is designed to communicate how the calculations will be many frontline summary references incorporates specifically the actual plan document compensation which he did not meet the second element one make cells to remain employed right that you prevented him from from fulfilling the second element well nothing you could have done he said of the work he was well employee plan this situation has a right to terminate someone in order to prevent them from fasting and pension benefits well that certainly depending on the nature of the plan that could raise the risk of issues it could raise other issues the kmart specifically it's specifically said that that's not an employee without well well access and the reason for my question is i think in other states this particular set of allegations would clearly state a cause of action or terminations violation of public allegations i'm not saying that you're conduct that was violently of a public policy or upon the employees engaging in conduct which public policy favors those are the only two exceptions you have to do something right that public policy says you should be doing but generally that exception even more narrowly in other states so absolutely and if you look at the cases that mr brown in his briefs and cited you're talking about cases for example from massachusetts which specifically say if you have is very limited here with respect to now what is the public policy that the that mr brown is trying to enforce or he didn't identify a public policy at all in the summer judgments t contrary what he argued this time restart the stage was we had a disagreement mr stockland i didn't get along he didn't like me he was out to get me because he thought that i was going to try to get his job well in stage where is the evidence in the record that there was a public policy that was being gotten that was being violated by sprint there's no allegation there's no evidence presented the judge rawlinson that this was a public policy where the statute worst the worst the regulation where's the case law this hoss about that and once again focus on him being instructed to do something that's awful or him doing something that's awful and we didn't we didn't allow him to do that  evidentiary issue there's been no showing that the exclusion of this evidence that they tried to offer somehow had an impact on any of the decisions the judge pro reached without cause and without notice affiliated companies or any definitive period of employment and that sprint has the right to terminate my employment at any time with or without cause i understand this past tuesday the entire and final agreement between me and sprint which is signed by the president of the company now mr brown wants to come in and say hold on my at will employment somehow been modified by this incentive compensation plan and that you have to read back into it nevada law which is that he was not well employee could be terminated for any reason thank you question a couple of the points were just raised we don't have a dispute with the at will aspect of the terminations he can be terminated for any reason other than an improper reason and that's where the wrongful termination comes  secondarily it's at will to terminate not at will to confiscate monies that already been earned by the employee and they did change terms and conditions of his employment i think sprint realized that with the large hotels in las vegas a couple of big contracts could really step this commission structure higher they raised the level during his employment from eight thousand a month in sales to ten thousand a month these were things we objected to during the course of the district court trial these were factual decisions made by the district court and those are not it issues on appeal what we're looking at are the legal issues that we claim are not properly decided as a matter of law not on the basis of the facts the first one the other the other item they point t before i go on is that they say we never asked for documents or got any additional documents changing any of these planned provisions again i would ask you to look at some of the case law because there are very clear statements in there to the effect of this if you're going to try and do something like this this language has to be crystal clear we're not going to interpret an employment contract such as to work a forfeiture mr brown got his commission plan yeah they didn't say oh by the way you know that if you leave you don't get paid those extra ten months a commission that you've earned after the fact similarly they didn't talk about whether that gets taken away that stress duty if they want to make th provision put it in the plan don't have a couple of excerpts pulled out and say what this really means is we can take this away if you only even if the close contracts were not raising issues about circus circus and otherwise you could have earned a lot more he had no salary for a while monthly check for the commissions he did it he did a monthly check and again i've seen not one case and i've got a lot of research on this i'm sure sprint has also that says you can take back these once they've once the employee has done everything he has to do to earn this commission the payment was only a matter of giving it to him as it came in from the customer it was a collection process and it passed through it was a situation where he had to go in every month and change them circuitry or do things this is always done he was the sales person not the technician so there's nothing more for him to what we're asking this court to do is to find out on the basis of the factual findings because again we're not challenging the factual findings even though we disagreed with some of them were asking this court to find as a matter of law he's entitled to be paid those undisputed commissions he should have a judgment in his favor of that amount that set forth in the record zero zero one one three shows the sprint calculations it's one hundred twelve thousand four hundred dollars that's what he would have earned had he not made another sale or done the other thing that sprint just staying there as an employee secondly we're asking that the case be re manda to the district court to allow testimony as to the wrongful termination claim and the motive for the terminations for the violation of the covenant of good faith and fair dealing under this contract in that case mr brown may be entitled to additional damages those would include his period of unemployment if in fact they deprived him of commissions he would have earned but for being fired he might have claimed for other commissions and the five months creative time where he was fighting back and forth the stress just that is to lie money paid the money that he was clearly entitled to the didn't come into the five or six months down the road this is literally the case for mr brown a carrot was held out in front of them you will get that carrot you're going to make a lot of money young man he went out and he got the care and we're asking this court not to allow the employer to take that carrot away from him after the fact thank